Award No. 19079 Docket No. M`V-17042
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The claimants are regularly assigned B&B mechanics with a work week extending from Monday through Friday (Saturdays and Sundays are rest days).
On Satu,la;', April 16, 1966, Carpenter Foreman Long was called to the Carrier's back shop at South Cumberland, Maryland to inispeat and, if necessary, to repa·r a door that was jammed and thereby preventing operation of the door. Foreman Lop- required assistance to correct the nodfunetioning of this doer. In.tcaa of calling the claimant B&B mechanics, who have customarily performed all work of this character, the Carrier assigned two r-liopmen, v·:io afe not covered within the scope of the Maintenance of Way .%%greement, to assist Carp(.ilter Foreman Long remove two guides, approximately twenty (:30) feet long and lour (d) inches wide and thereby perinitting the door to be raise(',. The work was performed from 7:30 A. M. to 10:30 A. M.
During a conference held on June 211, 7960, the Carrier's highest appellate officer agreed to pay the claimants for three (3) hours' each at their straight time rates of pay but, in a lebier dated July '., 19(:6, he declined the claim in its entirety.
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.
posture to examine, review and reach conclusions as to the basic work assignruents in this case and to decide, upon hearing all the evidence, as to the particular craft or class to whom this work belongs. It is the position of this Carrier that this work has traditionally and properly been performed by shop employes under circumstances comparable to those found in the instant case.
OPINION OF BOARD: On Saturday, April 16, 1966, a rest day for Claimants, Carpenter Foreman Long was called to inspect a jammed door in Carrier's back shop at South Cumberland, Maryland. As the door was in a half closed position locomotives using Track No. 3 could not enter the building for repairs. The Foreman required assistance in the removal of two guides and employes in another class and under another collective agreement were assigned for this purpose. The guides were removed in the period 7:30 A. M. to 10:30 A. M, and the door was raised.
Aside from the Third party situation which will be discussed below Carrier raises several contentions as follows: (1) that the work was of an emergency nature; (2) that the work does not come within the Scope of Petitioner's agreement; (3) that there is no showing that the Foreman made any attempt to secure employes from the B&B group or to request employes from the Master Carpenters and (4) that it has been an accepted practice on the property to permit shop employes to perform minor, emergency work in the shop.
Petitioner relies on Rule 1, Classification, in part, its Scope Rule and Rule 18(b). It contends that the failure of the Foreman to call Claimants does not have the effect of denying them rights under the agreement. It also contends that no emergency was involved. The pertinent parts of the Rules are reproduced here for convenience:
There are assertions in the record made by Carrier and denied by Petitioner as to past practices. In this regard we find that even if there was evidence supporting Carrier's assertions, practices not in accord with an agreement cannot have the effect of changing the agreement. There seems to be in Carrier's position a tacit admission that the right to do the work by other than Claimants existed only in the case of emergencies. We have considered the record carefully and in view of the lack of evidence to show that an emergency existed we ;ire not persuaded that one dud. Awards 13738, 16454.
We find that the work comes under the Scope Rule of the herein agreement. Awards 13836, 2009. We also find that the failure of the Foreman to seek out Claimants does not operate to deny them their rights under the agreement.
There remains for consideration arguments raised by Carrier as to the availability of Claimants and whether repair work within the contemplation of the agreement was performed. We find that unless Carrier attempted to contact Claimants it can raise no question as to their availability. The record shows no such attempt was made. Award 13267. As to whether repair work was done, the record shows that when the guides were removed the door could be raised. The fact that other work on the guides including their reapplication would be necessary does not render the intermediate step of removal any less repair work as contemplated by the herein agreement.
We find that Rule 18(b) required Carrier to call the Claimants. There is no evidence of an available extra or an unassigned employe who would not have had 40 hours. We are mindful that the Scope rule does not specifically list the removal of guides. We find, however, that such work is "minor repairs to roundhouses" in the Scope Rule quoted above which Claim ants have a right to do unless they are unavailable.
The possible Intervenor herein is International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers. In accord with Transportation-Communication Employes Union vs. Union Pacific Railroad Company (385 U.S. 157, 1966) said Organization was notified of the dispute by this Board and of its possible involvement therein and invited to participate. Copies of the submissions of Petitioner and Carrier were supplied to it. Said Organization chose not to participate. It submitted no comments, no submission and made no response to the invitation. As the possible Intervenor
was fully informed as to the situation we find that its action constitutes an mtqualified disclaimer in the matter herein. Accordingly, we find that we have discharged our obligation under the TCEU doctrine.
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 th< Carrier and the Employes involved in this dispute are respecLively Carrier and Employes wirhin 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