EMPLOYES' STATEMENT OF FACTS: The parties to this dispute are, as the record shows, in agreement concerning the facts in this case. On the dates involved in this dispute, the Carrier used employes regularly assigned to the Birmingham Division Gang to wire bungalows which were a part of the C.T.C. installation on the Montgomery and New Orleans and Pensacola Division.
The Carrier has a System Signal Gang No. 2 located at Birmingham, Alabama. The Brotherhood contends that this work properly belonged to this System Signal Gang and the Carrier violated the Agreement when it used employes from the Birmingham Division Gang to perform work on apparatus scheduled for use on another Division. The claim is for employes in the System Signal Gang and the employes from the Birmingham Division Gang who were removed from their regular positions and were required to perform work for another Division.
On October 6, 1960, General Chairman Tom McCamy filed a claim on behalf of the Claimants in this dispute with Mr. C. E. Pinkston, Assistant Signal Engineer. See Brotherhood's Exhibit No. 1.
Under date of October 28, 1960, Assistant Signal Engineer Pinkston addressed a letter to General Chairman McCamy in which he denied the claim. See Brotherhood's Exhibit No. 2.
On November 10, 1960, Assistant Signal Engineer Pinkston addressed another letter to General Chairman McCamy regarding the claim. In this letter, Mr. Pinkston referred to a telephone conversation between himself and the General Chairman. He also stated that if the Carrier's action in this ease was a violation, it was an error. See Brotherhood's Exhibit No. 3.
Upon receiving Mr. Pinkston's letter of Nevember 10, 1960, General Chairman McCamy, on November 23, 1960, addressed a letter to Claimant 0. R. Lee in which he informed Mr. Lee that Assistant Engineer Pinkston, in the telephone conversation referred to in Exhibit No. 3, had requested him to get the claim withdrawn, if possible, on the grounds that it was an error and had been corrected. Mr. McCamy sent Claimant Lee a copy of Mr. Pinkston's letter of November 10, 1960, and asked the men affected to review the matter and let him know their decision. The contents of this letter was discussed with the Carrier while the dispute was being progressed on the property. The letter is identified as Brotherhood's Exhibit No. 4.
Claimant Lee replied to General Chairman McCamy's letter of November 23, 1960, on November 29, 1960. He informed General Chairman McCamy that the violation could not have possibly been an error as he personally pointed out to Mr. Pinkston that the Carrier was liable for a claim as a result of its action. He further informed Mr. McCamy that he told Mr. Pinkston that if the Birmingham Division employes were removed from the job a claim would not be progressed. Mr. Pinkston refused to do this and when the claim was progressed, he turned the fans in the shop off and they remained off for the balance of the season. The contents of this letter was discussed during conference with the Carrier. The letter is identified as Brotherhood's Exhibit No. 5. 23776-20 329
As all claimants involved worked their regular assignments on the dates involved, the claims are in fact penalty claims, based on an alleged violation of the agreement.
Carrier submits the facts involved, the applicable rules of the agreement, and the practice heretofore followed show conclusively there is no contractual support for the employee claims, for which reason same should be denied
OPINION OF BOARD: This is a two part claim. The first part, consisting of subdivisions (a) and (b), is in behalf of three named members of Carrier's System Gang No. 2 on the ground that the Carrier, in violation of the Agreement, used three members of a Birmingham Division Gang to perform construction work on a new installation which, it is claimed in the first instance, was work reserved to these Claimants as members of System Gang No. 2. The work involved was the wiring of bungalows and relay cases to be used in connection with the C.T.C. installation on the MNO&P Division of the Carrier. In the alternative the Organization contends "that if any division gang men had a right to this work, it should have been MNO&P Division men because the work performed was for their seniority district."
The second part of the claim, set forth in subdivision (c), is in behalf of the three members of the Birmingham Division Gang who did the disputed work, on the grounds that by being so assigned "they were required to work away from their assigned positions".
The first part of this claim turns entirely upon the interpretation to be given Rule 51 (a) of the Agreement, the System Gangs Special Rule. This Rule provides:
The language of this Rule does not, as the Organization contends, reserve all new signal construction work to System Gangs; it simply states, in effect, that if and when System Gangs are set up the work to which they will: be "confined" is construction work on new installations. Indeed, the alternative advanced by the Organization itself to this portion of the claim suggests the possibility that a Division Gang might properly have been assigned the work in question if it had been the right one (i.e., from the MNO&P' Division and not the Birmingham Division), It is clear, that the first part of this claim has no support in the Agreement and must be denied.
The second part of the claim must also be denied because, having by mind that those three Claimants from the Birmingham Division Gang were actually paid for the work in issue, the very argument upon which the claim is predicated is that, one way or another, the three Claimants of the Birmingham Division Gang were not entitled to be assigned this work. In similar circumstances, the Board his frequently held that Claimants so situated have no standing to make the claim (e.g. Awards 6949-Carter, 7818-L. Smith, 7082-Whiting, 11049-Dolnick, 11107-McGrath, 11296-Moors). As was said of the Claimant in Award 7082 (Whiting, supra)
The Carrier also emphasizes, among other things, that the disputed work was actually performed within the geographical bounds of the Birmingham Division although, admittedly, it was to be installed on the MNO&P Division. We do not pass upon the validity of this argument urged by the Carrier. We simply hold that, for the reasons already stated herein, both parts of the claim have not been sustained and must, accordingly, be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
The error of this Award is clearly disclosed by recalling that so far as part (b) 1, 2 and 3 of the Claim is concerned the basic issue was whether Carrier has the right under the rules to use Birmingham Division gang employes on MNO&P Division work. Even a cursory examination of the Claim is sufficient to disclose that the Employes were not asking, as the Majority erroneously asserts, that all new signal construction work be reserved to System Gangs.
Carrier conceded throughout the record that "The rights of employes, other than when assigned to a system gang, are confined to the seniority district where employed. The rights of employes, while assigned to a Sys tem gang, extend over the entire system. * * *" Similarly, it was conceded that the work involved was of the type contemplated by Rule 51(a), 13776-22 331
meaning that the Claimants specified in (b) 1, 2 and 3 of the Claim were eligible to perform the work by virtue of both the nature and locale of the work and their system seniority status whereas members of the Birmingham Division gang had no contract right to the work. The Majority, consisting of the Referee and the Carrier Members, should have confined its effort to the issue presented.
The misty implication that the Organization argued against itself by suggesting that if any Division gang men had a right to the work, it should have been the MNO&P Division men, is wholly irrelevant in light of the basis upon which the dispute was handled both on the property and before the Division. Furthermore, the Majority was well aware that the Division has long held that the presence of others in whose behalf a claim might have been made is of no concern to the Carrier.
As for part (c) of the Claim, it is understandable that the Majority saw fit to make no mention of Rule 27 cited and relied on by Petitioner, reading in pertinent part:
The Awards relied on by the Majority in support of the denial of this portion of the Claim fall short of the mark in that none of them involve a comparable fact situation. It is interesting to note, however, that the principles and reasoning employed in Award 6949 support Petitioner's position with respect to parts (a) and (b) of the instant Claim.
This Award falls far short of interpreting the rules in the light of the facts; therefore, I dissent.