THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railroad Signalmen on the Belt Railway Company of Chicago that:
EMPLOYES' STATEMENT OF FACTS: This claim resulted when, on October 12, 1964, Carrier assigned to an employe not covered by the Signalmen's Agreement the work of operating a Shield-Bantam crane to remove the beams from a car retarder in the System at the Clearing Hump. The retarder was in the process of being rebuilt by Signal Department employes who had been properly assigned to the project in accordance with the Scope of their Agreement.
The General Chairman initiated a claim on behalf of Signal Maintainer D. Flasks for eight (8) hours' pay at the time and one-half rate as a result of the Scope Rule violation. It was subsequently handled in the usual and proper manner by the Brotherhood on the property, up to and including the highest officer of the Carrier designated to handle such disputes, without receiving a satisfactory settlement. Correspondence which constitutes and is pertinent to the handling of the claim and subsequent appeals is attached hereto as Brotherhood's Exhibit Nos. 1 through 7.
There is an agreement in effect between the parties to this dispute, bearing an effective date of September 1, 1949, as amended, which is by reference made a part of the dispute.
CARRIER'S STATEMENT OF FACTS: The Carrier operates a Car Retarder Hump Classification Yard at Clearing on a twenty-four hour per day basis. An average of about 4,500 to 5,000 cars pass through the retarders every day. The car retarder in "B" section of the system was in the process of being rebuilt. It was necessary to lift beams out of the car retarder to repair and replace them. Due to the excessive weight of the beams it was necessary under existing conditions and in the interest of safety to use a crane to assist Signal Department employes in the removal of the beams from "B" section retarder. The only equipment available to perform this work was a Shield-Bantam crane normally assigned to the Carrier's Stores Department operated by a Stores Department employe qualified to do so. That crane operated by the Stores Department employe was used to assist Signal Department employes in lifting the beams out of the retarder on Monday, October 12, 1964.
The claimant, Mr. Flasks, has not worked on car retarder replacements and was not qualified to operate the crane that was used and there were no other Signal Department men qualified to operate the crane. Mr. Flaska worked his regular third trick assignment on the claim date. The removal of the beams was performed on the second trick.
OPINION OF BOARD: During the second trick on October 12, 1964, at the Clearing Hump, Carrier had an employe not covered by the here involved Agreement operate a crane in assisting Signal Department employes in rebuilding a retarder. Carrier conceded that the involved work ordinarily belongs to the Organization under the Scope Rule, but claims an exception here on the basis that there was no available employe covered by the Agreement who was qualified to operate the crane and on the basis of an alleged practice of using employes not covered by the Agreement to assist in cases like this. Carrier also argues that the Claimant named was from another shift, had never before done the involved work and had in the past refused overtime, and is therefore in any case not entitled to be paid as claimed in part (b) of the Claim.
The issues joined by the parties may be clearly seen from a recital of portions of the correspondence they exchanged on the property. The General Chairman filed the claim in a letter dated November 11, 1964, saying that it was:
In the Signal Supervisors denial of this claim he admits that an employe other than a Signal employe was used . . . ." (Emphasis ours.)
. . . Secondly, we have in the past, used other men from other departments on various pieces of equipment as we needed additional help. These other men have been used to lift the beams out of the retarders and to replace them.
In the past, we have never contacted you when whe had brought in other pieces of equipment to expedite the job . . . ." (Emphasis ours.)
. . . The work was performed over a sixteen hour period on the first and second tricks. Mr. Flasks, who has not worked on retarder replacements, held a regular third trick assignment. He is not qualified to operate the crane used in this instance and I am informed that there are no other Signal Department employes who were qualified to operate this crane. While it may not be material in determining the validity of this claim made for Mr. Flaska, it is a fact that he personally refused to work overtime in the past, so that the claim for this individual is strictly on a technical basis.
All available Signal Department employes were used on this work and, as stated before, none were qualified to operate the crane and none could be used to operate it while Flasks was engaged in other work."
"(a) Where circumstances require the use of additional employes to expedite the work or furnish required additional help, it is permissible by agreement with the General Chairman to use other available company employes at Signal Department rates of pay and under Signal Department supervision.
This will supersede my letter of October 23, 1961, concerning the changes proposed by you on October 13, 1961, re: bulletins No. 61-5 and 61-6:
What appears to be Carrier's defense against the claim that Carrier ignored Rule 67 is in the quoted portion of the Engineer's April 30th letter; there Carrier says that both employes not covered by the Agreement and pieces of equipment from other departments had in the past been used on the retarder replacement jobs and that Carrier never contacted the Organization when it brought in equipment. In the face of the clear mandate of Rule 67 that when circumstances require that additional help be used, other than Signal employes may be used by Carrier by agreement with the Organization, we find this statement of defense (if it is actually intended as a defense under Rule 67) both equivocal and inadequate. The record contains but one example offered by Carrier that employes other than Signal employes had been used in the past, and no examples of such use of non-Signal employes in such cases without agreement with the Organization. Even if Carrier's arguments that the circumstances here permitted an exception to the Scope Rule were otherwise valid, Rule 67 sets forth prerequisites for Carrier's use of such an exception in cases such as this. Since Carrier did not follow the clearly stated mandate of Rule 67, we need not examine the other arguments about the claimed exception to the Scope Rule.
We find no merit to Carrier's argument that Claimant was not entitled to be named as the Claimant in the remedy section of the Claim.
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