Award No. 19038 Docket No. MW-17432
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the A,reement when it assigned the work of operating a Brown Hoist Machine, which was used to perform ditching work and to remove debri near Mile Post T-23, to a mechanical department employe instead of to Special Equipment Operator H. L Cruise, during the period extending from September 19 through September 23, 1966 (System file D-4431/A-9121).
EMPLOYES' STATEMENT OF FACTS: On September 19, 1966, and continuing through September 23, 1966, the Carrier used a Brown Hoist Machine, assigned to the Mechanical Department, to perform ditching work and remove debris from the right-of-way near Mile Post T-23. The Carrier assigned a mechanical department employe, who holds no seniority as a Special Equipment (machine) Operator within the Maintenance of Way Department, to operate same.
The claimant has established and holds seniority as a special equipment operator and was available, willing and qualified to have performed this work had he been given the opportunity to do so.
Claim was timely and properly presented and handled by the Employee 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 March 1, 1951, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: In the vicinity of Mile Post T-23 the tracks of this Carrier pass through a narrow cut with the sides of
the cut almost peiyendicular and xpproxintntely 40 feet high. As a result of heavy rains a considerable amount of rock and dirt had fallen from the sides of this cut into ditches alongside the track through the cut. To provide for clearing the rocks and dirt from tla:se ditches a work train handling air-dump can end the Mechanical Departmeut Brown Hoist (a track mounted crane equipped with clamshell bucket) departed Chaffee, Missouri, a terminal some 120 miles south of Mil..; Post T-23, at 8:40 A. M., Monday, September 19, 1966 enroute to Mile Post T-23. The work of clearing the ditches through this cut was performed by bucketing the rock and dirt into the air-dump cars after which the work train was moved out of the cut and the air-dump cars emptied.
Personnel involved in this ditching operation consisted of the train crew who manned the work train; the Brown Hoist operator who operated that machine; an extra gang foreman who handled the open~sting mechanism of the air-dump cars; and the Roadmaster who supervised the operation of the work train. The work train was tied up at Crystal City, lilissouri, approximately 17 miles south of
On September 20, 21 and 22 the work extra was called each morning and tied up each evening at Crystal City and nerfornrad ditching work as indicated above on each of thes
On Friday, September 23, the work extra wa.a coiled at Crystal City at ,:30 A. M. and after completion of ditching work required departed with Brown Hoist and air-dump cars for the return trip to Chaffee, Missouri, arriving Chaffee at 4:20 P. M. and tying up at 4:40 P. M.
OPINION OF BOARD: From September 19, 1966, be September 23, 1966, inclusive, a Mechanical Department employe under the supervision of the Roadmaster, operated a Brown Hoist in the performance of clearing ditches near the vicinity of Mile Post T-23 on Carrier's right-of-way. The Organization relies on the Scope Maintenance of Way forces have the right to operate equipment used in ditching work and in remorring debris from along the right-of-way and that the character of the work performed determines the class from which the operator will be drawn. Carrier rontemds that the Brown Hoist was loaned to this operation by the mechanical department and that Maintenance of Way employee never operated this particular equipment; that the Scope Rule does not include Brown Hoist operators; that the April 1, 1961, Agreement specifically excludes Brown Hoi this job and was not available for this job and was fully employed during the performance of this operation: and that, therefore, Carrier did not violate the Agreement in this instance.
The record discloses that the work involved was that of clearing ditches through a narrow cut that had been accumulating a considerable amount of rock and dirt that had fallen from the sides of this cut into the ditches along side the track because of a heavy rain. Carrier contends that both the April 1, 1951 Agreement and the March 1, 1951 Agreement specifically enumerate machines by brand name and type of work they perform. In this connection, Carrier contends that a Brown Hoist is not enumerated or set out in either one of the Agreements heretofore mentioned entered into with the Brotherhood of Maintenance of Way E must prove exclusivity to the use of this machine by custom, practice and tradition. The Organization contends that it is the character of the work performed by the machine t operator will be drawn.
This Board finds the Brown Hoist could be used by either craft. In other words, Maintenance of Way employee may use this machine as well as employee assigned to the Mechanic the work performed by the machine would determine the crag from which its operator was drawn. See Awards 4648, 4647, 13517, 14004, and Second Division Awards 244, 1829 and 34 record that an emergency existed in this instance. The record indicates that the ditches along the tracks at the particular point Involved needed cleaning. This standard ordinary work belongs to the Maintenance of Way Department. If an emergency existed, such as a washout, derailment, etc., the decision here might have been diferent. However, the involved work was routine and belongs to Maintenance of Way employes. Had the clearing of the debris from the ditch been done by hand, another type of machine, or otherwise, this work, absent an emergency, would belong to Maintenance of Way employee.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to ·tlus dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and hold.%:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes wit as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
DISSENT OF CARRIER MEMBERS TO AWARD 19038.
(DOCKET MW-17432)
Award 19038 is in palpable error. It ignores the Agreement, the practices thereunder and the record in the dispute.
The General Rules agreement, by the specific language of the Scope Rule excepts Brown Hoist Engineers. The Carrier called attention to that portion of the Scope Rule reading:
Neither the Scope Rule of the Agrc^ment of March 1, 1'961 covering equipment mechanics, special machine engineers, operators, firemen and helpers nor the Rates of Pay Rule of the Agreement includes engineers or operators of Brown Hoists.
The Record showed that Brown Hoists had been in use on the property of the Carrier for over sixty years, that they had been used for many years to do the same type of work as involved herein, and that the operator had always been furnished by the Mechanical Department, under whose jurisdiction the machines are assign Brown Hoist operators, but ignored by the Referee who chose to take the easy route of following other awards covering disputes arising between other parties involving other agreements and other records.
As the Agreement on which tl,e claim was based lists the specific machines covered, but does not dcl and historically assigned to and performed exclusively by employee covered by the Agreetttent. No such proof was presented by the Petitioner.
The CarTior also pointed out that claimant was net qualified to operate a Brown Hoist. This contention was simply ignored by the Referee.
The Referee likewise conveniently ilmored the contention of the Carrier that claimant was not available to perform the work, working full time approximately 225 miles from the location when the work complained of was performed.
Numerous awards of this Division, such as 6113, recognize that it has authority only to interpret and apply the provisions of the Agreement and Rules as agreed upon, between the parties and that it has no authority to fix rates of pay.
There is no single uniform ra·c of pay for special machine engineers, operators, firemen and helpers listxd in the Scope Rule of the Controlling Agreement. Monthly rates of pay of such employes at the time of claim ranged from a minimum of $440.75 to a maximum of $526.78 acrd such monthly rates comprehend 17415 hours. The established rate of pay in the Firemen and Oilers' Agreement for the Mechnical Department employe used to operate the Brown Hoist was then $2.7628 per hour.
Part 2 of -the Employee' statement of claim does not specify the special equipment operator's rate of pay claimed. The Scope Rule and the Rate of Pay Rule of the Controlling Agreement do not contain a classification and rate of pay for engineer or operator of Brown Hoist for translating the award into a precise monetary sum. Therefore, the award is ambiguous and casts a serious doubt whether it is final and capable of enforcement.
The Agreement rules, the practices thereunder, and the Record before the Board, called for a denial of the claim in its entirety. The referee commit-