STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The Carrier assigned four electricians, who have no seniority within the Maintenance of Way and Structures Department, to perform the work of removing storage racks and shelves from their headquarters at Du Bois, Pennsylvania, and to replace same with a new storage rack. The new storage rack which they permanently fastened to the wall, was approximately 30 feet long and 63ya inches high. It contained 32 shelves approximately 44 inches iwde and 18 inches deep which were placed 16 inches apart. The aforementioned work was performed during the period between July 6 and July 21, 1966.
The claimants, all of whom have established seniority as B&B mechanics and are regularly assigned as such, were available and would have willingly performed this work if they had been given the opportunity to do so.
The time limits within which to institute proceedings to this Board on this case were extended by agreement confirmed in a letter reading:
The Agreenr:nt in effect between the two l,artie=_ to this dispute dated April 1, 1951, together with supplements, amendments and interpretations thercto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: There is on file with the Third Division, National Railroad Adjustment Board, copy of Agreement effcctive April 1, 1951, between this Carrier and The Brotherhood of Maintenance of Way Employees. That Agreement, so far as it may he applicable, is made a part of the record in this case by reference.
At Du Bois, Pennsylvania Carrier had a building approximately 27 feet by 50 feet in size which housed the boiler room for the roundhouse. In July, 1965, one-half of this building was assigned to the Electrical Road Form for it~.e as its headquarters, to perform bench work and for storage of tools and material.
During the period July 6 to July 21, IJ65, the Maintenance of Way B&B Force at Du Bo's was instructed to and did cut out and remove all the old piping from that portion of the building assigned to the Electrical Road Force, and also removed the concrete blocks which had been used as the support for the boilers.
The B&B Force then installed a partition, framed the ceiling and covered both the partition and the ceiling with 1/4 inch plywood, thereby forming a room 12 feet high, 13?b feet wide and 50 feet long.
Contiguous with the work of partitioning the room, framing the ceiling and installing the plyRVOod, the B&B Force also upgraded the windows, painted the floor and walls, and built and installed what constitutes two sets of wooden shelves in this room. One set of the wocden shelves is 1$ inches deep, 48 fcE·t long and 6 feet high, consists of 5 individual shelves which were nailed to the partition studding. The other set of wooden shelves is 24 inches deep, 13?!z feet long and 6 feet high, consists of 5 individual shelves which are fastened to the brick wall of the building by means of masonry anchors. The brick wall, of course, is the wall of the original building.
Each of these two sets of wooden shelves was installed by the B&B Force in such manner that they occupy the wall space from the citing down to a point sixe feet from the floor, In other words, the lowest of the wooden shelves is six feet from the floor.
When the space was assigned to the Electrical Road Force, employes on that force were used to remove certain wood.zn shelves from the area. These shelves were on the order of an open cabinet which rested on a portable-type table. The table and shelves were carried outside the building and scrapped.
The employes on tl,^ Electrical Road Force secured a material rack that had been discarded by the Stores Department. This rack was constructed of angle iron with sheet metal shelves, all welded. These employes cut this rack in hall lengt4wLe and wriicd cue two halves into the room, put them together, end to end, thus forming a metal storage rack 18 inches deep, 48 feet long and 5 feet 4 ;nehes high, with 4 shelves. After assembling this rack, it was moved back against the wall underneath one set of the wooden shelves. In order to stabilize the rack on the rough floor, several shims were placed under parts of th^ rack gull it was tacked to the wall by use of 22 16-penny trails. It is a portabl^. rack.
Copy of pen<·il sketch c·,aitlrt "DtBois, Pa. Eicctric Shop" showing the room in question, the location of tlv· wooden shelves and the metal storage rack is attachcxl as Carrier's 1:.x1~ilyitA.
There was one elretrieian, one apprentice electrician and one assistant electrical foreman oil the .job during the period July f, to July 21, 1965, for a total of 22 hours.
Attachcd :vsCarrier's Exhibit B is copy of the Gemral Chairman's letter of September 21, 1^65, appealing this claim.
The claim was declined by the Carrier on November 12, 1965. There is no dispute insofar as Time Limit Rule is concerned.
OPINION OF BOARD: Carrier, during the period July 6 and July 21., 1965 assigned an assistant electrical foreman, an electrician and an electrician's apprentice to the job of dismantling wooden shelves, originally installed by B & B forces, and installing, a metal storage rack in a building at Du Bois, Pa. A portion of the building had besn assigned to the Electrical Road force for use as its headquarters sod for bench work. The metal storage rack was to be used for storage of tools and materials. The raek was obtained from the Stores Department which had discarded it. The employes assigned cut the rack lengthwise and carried it to the room and put the halves together end to end. The rack involved was 48 feet long, 18 inches deep, 5 feet 4 inches high and had 4 shelves. It was placed directly underneath another set of wooden shelves which veivo hung on the wall six feet from the floor, These wooden shelves had been fabricated and installed by B & B forces.
Carrier contends, among other things, that the fabricating of the metal rack, the dismantling of the wooden shelves and the installation of the metal storage rack or storage shelves by a class other than Claimants did not involve construction of a railroad structure nor maintenance of a railroad structure amt is therefore not covered by the Scope Rule. Carrier also contends that the shelving which was attached to the wall with twenty-two (22) sixteen (l6) penny nail: and stabilized on the rough floor by several shims was not part of the structure but was actually equipment. Moreover, Carrier relies on Award 1382? between the same parties where a similar claim was denied. Petitioner relies oil its Scope Rule, as well as Award 8093 also between the same parties, which sustained a similar case. Petitioner also relies on Award 12133.
Petition^r fnrthcr contends that by excluding maintenance work on material bills «rithin storerooms or oil houses the parties included the work when the storage i-:2oks are within other than store rooms or oil houses, Rule (b) -6(b) of the Scope rule re a 4s as follows:
We are persuaded that the storage racks herein are, in effect; storage bins. We find they awere constructed. We further find that they are affixed to the building and are a part thereof. The mere fact that the rack may be removed does not make it any less part of the building. We are finally persuaded that Rule (b)(6)(b) has application as it is "a cardinal rule of agreement and contract construction that where an exception is specifically and expressly set forth, no others may be implied." Award 8093.
Accordingly we shall sustain the claim. Noting that there is a dispute as to the amount of reparations recourse will be had to Carrier's records to determine the amount of time spent on the project by Electricians and the Claimants will each receive an equal share of the time spent at their pro rata rate.
The representative of the electricians has been notified of this dispute and has declined to make a submission to this Board. Accordingly, we have discharged our responsibility under TCEU v Union Pacific Railroad Company (385 U.S. 177) and have found that by assigning the work to Electricians Carrier violated Petitioner's agreement.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute dun 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