Docket No. MW-12050
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
William H. Coburn, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
SEABOARD AIR LINE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the effective Agreement beginning
on May 8, 1959 when it assigned a Welding Sub-department Foreman instead of a Track Sub-department Foreman to supervise a
group of Track Sub-department employes who were "performing
work of the nature generally performed by track laborers."
(2) Mr. C. E. Tucker now be allowed the difference between
what he received at the Apprentice Foreman's rate and what he
would have received at the Extra Gang Foreman's rate if he had
been properly assigned to perform the supervision work referred to
in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS:
On or about April 5, 1959,.
the Carrier placed into operation a new Rail Welding Plant at its Old Savannah
Yard, Savannah, Georgia, for the purpose of welding rails into continuous
lengths.
Up until May 8, 1959, Claimant C. E. Tucker, who has established and
holds seniority in the Track Sub-department, and who was assigned to the
position of Extra Gang Foreman in that Sub-department, supervised and'
directed the work of Track Laborers in the performance of rail-handling
work at this facility.
Effective as of May 8, 1959, the Track Laborers, together with the rail
handling work, were arbitrarily removed from the claimant's supervision and
jurisdiction and were thereafter assigned to the supervision and jurisdiction
of the welding Sub-department Foreman. Effective as of May 11, 1959,
the claimant's Extra Gang Foreman's position was abolished and the claimant
was returned to the position of Apprentice Foreman as will be noted from.
the following:
[39]
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welding plant incidental to it being welded
into ribbon rail and to carry the
time worked by them.
OPINION OF BOARD:
In the handling of the dispute on the property
and in its submission to this Board the Carrier took the position that the
claim had not been handled in accordance with the requirements of Article V
of the Agreement of August 21, 1954. That issue was referred to the
National Disputes Committee established by Memorandum Agreement dated
May 31, 1963, to decide disputes involving interpretation or application of
certain stated provisions of specified National Non-operating Employee Agreements. On March 17, 1965, that Committee rendered the following Findings
and Desision (NDC Decision 8):
"FINDINGS: (ART. V) Paragraph 1 (a) of Article V of
the August 21, 1954 Agreement provides that-
'All claims or grievances must be presented in writing
by or on behalf of the employee involved ' * * within 60
days from the date of the occurrence on which the claim
or grievance is based. * * *'
"On June 30, 1959, monetary claim, which except as indicated
below was essentially the claim set forth above, was presented on
behalf of Tucker. The 'Statement of Claim' included another money
claim, growing out of the same alleged violation, on behalf of the
'senior employee holding Foreman's seniority on the Carolina Division
and working in the lower ranks.' The 'date of occurrence on which
the claim or grievance was based' as set forth in this initial claim
was April 5, 1959, and the claim was handled on the property up to
the highest officer of the carrier on that basis.
"During the handling on the property, officers of the carrier
pointed out, on several occasions, that the action complained of took
place on May 8, 1959, rather than on April 5, 1959; and the carrier's
highest officer objected to the claim on behalf of 'the senior employee
holding Foreman's seniority on the Carolina Division and working in
the lower ranks' as not being in conformity with Article V of the
August 21, 1954 Agreement.
"The employees' submission to the Third Division, N.R.A.B.,
shows the 'date of occurrence' as May 8, 1959 and Mr. C. E. Tucker
as the only claimant.
"The National Disputes Committee rules that the claim submitted to the Third Division in Docket MW-12050 complies with the
requirements of Article V of the August 21, 1954 Agreement.
"DECISION: The claim in the instant dispute, as submitted
to the Third Division, complies with the requirements of Article V
of the August 21, 1954 Agreement.
"This decision disposes of the issues under Article V of the
August 21, 1954 Agreement. The docket is returned to the Third
Division, N.R.A.B., for disposition in accordance with Paragraph
8 of the Memorandum Agreement of May 31, 1963."
Proceeding now to the merits of the claim, the following facts are deemed
material and relevant:
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Early in 1959 facilities were constructed by the Carrier at Savannah,
Georgia for the welding of rail into continuous lengths; what is comomnly
referred to as "ribbon rail." An extra gang in charge of Foreman C. E.
Tucker, the Claimant herein, performed the necessary track work in constructing the plant. The construction work was completed on May 7, 1959,
whereupon the extra gang was cut off and Claimant reverted to his position
of Apprentice Track Foreman on May 8.
When the welding plant was placed in operation, this being a new process
on this Carrier, two welding gangs were organized to do the work, on two
shifts, the gangs consisting of foremen, welders, welder helpers, and laborers
to handle the rail from storage tables or racks on rollers to and from the
points or stations where the rail was heated, welded and cut. Laborers cut
off with the extra gang on May 7 were assigned to the welding gangs, under
the supervision of the welding foremen, beginning May 8 and remaining
until July 9, 1959, when the rail welding operations were completed and
the gangs cut off.
Employes contend that an extra gang foreman should have been placed
in charge of the laborers.
Carrier asserts that the work performed by the laborers at the welding
plant "was an integral part of the welding operations" which were under
the supervision of a welding foreman, and that there was no need for or an
agreement rule requiring the use of a gang or track foreman to supervise the
aforesaid work.
Rule 1 of the Agreement is the Scope Rule and lists the classifications of
"Extra Gang Foremen" and "Laborers" within the Sub-department titled
"Track". As we understand the Employes' position, it is, in effect, that by
reason of the inclusion of these classifications within the same sub-department,
no one other than foremen so listed therein may properly be used to supervise any work performed by such laborers.
The Board has heretofore ruled on claims similarly grounded. In Award
4992 (Referee Carter) we said:
"We think it is within the province of the Carrier to determine
the amount of supervision needed to properly expedite the work.
If the foreman's position is not required and the supervisory duties
of the position can be handled by other supervisory officers who are
entitled to perform it, we can find no rule of the Agreement prohibiting such handling. * * *"
Again in Award 6705 (Referee Donaldson) the Board, in denying a claim
that a painter foreman should have been used when painters were assigned
to work under the supervision of a B&B foreman, held:
"*
* * Hence the classifications in themselves and the Memorandum of Agreement which brought them into being, gave no
rights to insist upon any certain composite in forces and the
Carrier's right to arrange its forces and determine what supervision
was necessary, continued unimpaired.
"We are not here concerned with the taking of work out from
under one agreement and placing it under another. Simply, that
with a diminuation of work the further need of special supervision
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disappeared and the work was combined under another foreman
subject to the same agreement. We have recognized Carrier's rights
in this regard in Awards 5149, 4992, and 4235 among others."
The issue here raised appears to have been settled by prior Board rulings.
There is nothing in evidence here which would compel the reversal of these
well-reasoned and sound decisions. Accordingly, the claim will be denied.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon, and 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 2.1, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement of the parties was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 17th day of September 1965.