NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John J. McGovern, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
SOUTHERN RAILWAY COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it assigned to outside forces the work of replacing the old tile roofing with asphalt
shingle roofing on a portion of the roof on the shed and the main
building at the passenger station at Spartanburg, South Carolina.
(Carrier's file MW-22822.)
(2) B&B Foreman H. A. Webster, B&B Mechanics W. T. Bryant
and C. C. Holyfield, B&B Helpers W. A. Kinard and W. G. Shelton and
B&B Apprentices W. Trapp and L. Brown each be allowed pay at their
respective rates for an equal proportionate share of the total number
of man hours consumed by outside forces in performing the work
referred to in Part (1) of this claim.
EMPLOYES' STATEMENT OF FACTS: During the period between
March 1 and April 22, 1965, the work of replacing the tile roof on the passenger station at Spartanburg, South Carolina with asphalt shingles was performed by forces outside the scope of the Carrier's agreement with the
Brotherhood of Maintenance of Way Employes. The aforesaid work was
assigned to outside forces without benefit of negotiation and agreement with
the employes.
The performance of said work did not require any special tools or skills
beyond that possessed by the Carrier's B&B department employes.
Claim was timely and properly presented and handled by the Employes at
all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in effect between the two parties to this dispute dated
August 1, 1947, together with supplements, amendments and interpretations
thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: Part (1) of claim alleges violation of the agreement because Carrier, in accordance with the established and
recognized practice, contracted a construction project where the contractor
Furthermore the NRAB has on numerous occasions declined to
make sustaining awards where, as here, claimants
were on duty and
under pay when the claimed work was performed. Please see Second
Division Award 3967 and Third Division Awards 10963 and 13958.
Claim being without basis and not supported by the agreement
cited and relied upon payment is declined."
On June 17, 1966, the Director of Labor Relations wrote the General
Chairman as follows:
"In our conference on June 16 we discussed the 'claim on behalf
of H. A. Webster, B&B foreman, W. T. Bryant and C. C. Holyfield,
B&B mechanics, W. A. Kinard and W. G. Shelton, B&B helpers,
W. Trapp and L. Brown, B&B apprentices, for pay at their respective rates for an equal amount of time consumed by employes of the
contractor while removing old tile roof and applying new asphalt
shingles on the passenger station at Spartanburg, South Carolina,
between March 1 and April 22, 1965.'
The facts in connection with this claim have already been explained to you in considerable detail. There is no point in repeating
them. I emphasize however the fact that the claimants were on duty
and under pay when the claimed work was performed and were not
adversely affected. In addition I call your attention to two recent
decisions of the U. S. District Court in Greensboro, North Carolina
involving similar circumstances where the court refused to award
punitive damages even in situations where the Board held that the
agreement was violated. Naturally we do not concede there was any
violation in the instant case. Actually there was none.
Claim being unsupported by the agreement and without basis,
I confirm my previous declination of the same."
OPINION OF BOARD:
This is a classical Scope Rule case, wherein it
is alleged by the Organization that Carrier, by engaging the services of an
outside, independent contractor for the performance of certain work, stands
in violation of the afore-cited Rule.
In Award 12929, facing the identical issue, we said
"The pertinent Scope Rule is general in nature, merely listing the
various categories of workers covered. It does not describe the work
covered by the Agreement. By way of a prefatory remark, it states
that `These rules govern the hours of service and working conditions
of the following employes in the Maintenance of Way and Structures
Department, etc;' and then lists the types of employes covered.
The language of the Scope Rule is clear and unambiguous. It does
nothing more than govern the hours and working conditions of the
employes. It does not delineate nor grant to the employes a specific
type of work to be done by them exclusively."
We adopt the cited award and the reasoning contained therein. We will
accordingly deny the claim.
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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 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement 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 24th day of May 1968.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A-
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