(a) That the Detroit, Toledo and Ironton Railroad Company (Carrier) has violated and continues to violate the Scope Rule of the Current Agreement between it and its employes represented by the Brotherhood of Railroad Signalmen (Brotherhood) by causing and/or permitting employes of Sylvania Electric Products Company (Contractor) to perform maintenance and repair work on Automatic Car Identification (A.C.I.) equipment.
(b) That Messrs. T. J. Rathke and K. W. Keeton (Claimants) be paid as prescribed in Agreement Rules 16 and 55 for all time worked by employes of the contractor in violation of the Agreement. The time involved to be divided equally between the Claimants.
This Agreement shall apply to all employes in the Signal and Communications Department below the rank of Assistant Supervisor of Signals and Communications engaged in the construction, installation, inspecting, testing, maintenance and repair of signals, signal power lines, telegraph and telephone systems, electronic equipment and apparatus, interlocking plants, electrically operated highway crossing protection devices, wayside train stop and train control equipment, centralized traffic control systems, signal shop work and all other work generally recognized as signal and communication work."
Per a letter dated February 28, 1969, Mr. Keeton advised Mr. Swartzwelder that the denial of the claim is being further appealed and did so in another letter dated February 28, 1969 to Mr. H. W. Seeley, Assistant Vice President-Chief Engineer. (See Exhibits E.)
Mr. Seeley replied to Mr. Keeton's appeal in a letter dated April 22, 1969 (see Exhibit F), and declined the appeal.
In a letter dated June 16, 1969, Mr. Keeton advised Mr. Seeley that the denial of the claim would he appealed and did so in another letter dated June 16, 1969 to Mr. R. J. O'Brien, Personnel Manager. (See Exhibits G.)
Mr. O'Brien replied to Mr. Keeton's appeal in a letter dated July 15, 1969 (see Exhibit 11), and declined the appeal for the reasons stated in his letter.
Conference was held on September 29, 1969 for the purpose of discussing the claim. Mr. Keeton confirmed the conference in a letter dated October 9, 1969 and Mr. O'Brien confirmed the conference in a letter dated October 21, 1969. (See Exhibits I.)
Automatic car identification equipment consists of a series of devices that are intended to automatically identify marked rolling stock at various locations on the railroad and produce digital output for use in railroad data processing and control of car utilization. Some of the parts that presently comprise A.C.I. equipment are referred to as scanners, decoders, computers, labels, etc.
OPINION OF BOARD: The record shows that automatic car identification equipment was leased from and installed for use on the Carrier's property by Sylvania Electric Products, Inc., and that such equipment became operational on or about July 17, 1968. The claim alleges a violation of the Signalmen's Agreement because of signal employes not being used to perform maintenance and repair work on such equipment.
The Carrier contends that the Agreement does not reserve the work involved exclusively to Signal Department employes.
The Scope Rule and Article I - Classification - of the applicable Agreement reads:
This Agreement shall apply to all employes in the Signal and Communications Department below the rank of Assistant Supervisor of Signals and Communications engaged in the construction, installation, inspecting, testing, maintenance and repair of signals, signal power lines, telegraph and telephone systems, electronic equipment and apparatus, interlocking plants, electrically operated highway crossing protection devices, wayside train stop and train control equipment, centralized traffic control systems, signal shop work and all other work generally recognized as signal and communication work."
RULE 1. FOREMAN-ELECTRONIC TECHNICIAN: An employe who is assigned to and whose principal duties are to supervise other electronic technician employes classified herein, who may, however, perform electronic technician's work and work with such employes, shall be classified as Foreman-Electronic Technician.
RULE 5. ASSISTANT ELECTRONIC TECHNICIAN: An employe in training for a position of Electronic Technician, working with and under the direction of an Electronic Technician, shall be classified as an Assistant Electronic Technician.
RULE 5-A. ASSISTANT MAINTAINER: An employe in training for a position of Maintainer, working with and under the direction of a Maintainer, shall be classified as an Assistant Maintainer.
The Carrier contends that automatic car identification equipment is new to the railroad industry, is experimental in nature and is subject to constant modification by the Sylvania Electric Products firm from which the equipment is leased.
It is clear from the "NOTE" under Article I of the Agreement that all electronic work is not reserved to employes covered by the Agreement. The "NOTE" refers to "telephone and electronic work as has been customary." The automatic car identification equipment was not in existence at the time the Agreement was entered into. Therefore, work on such equipment could not be "electronic work as has been customary" as referred to in the "NOTE."
As the work complained of was not in existence at the time the applicable Agreement became effective, it cannot properly be held to be work within the scope of that Agreement. We will, therefore, deny 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
Nowhere in its opinion does the Majority (Carrier Members and "Neutral" Referee) discuss the position of the Employes or even acknowledge that they took one. Hence, it is quite obvious that the Employes' statement was completely disregarded.
It has long been the illusion of this member that those appointed to serve as Referees to resolve disputes in which this Board has deadlocked were supposed to be neutral and to consider the positions of all parties. The Majority's approach to subject dispute goes far in dispelling that illusion.