NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number SG-19443
Frederick R. Blackwell, Referee
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(The Long Island Rail Road Company
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of
Railroad Signalmen on the Long Island Rail Road:
On March 27, 1970, employes of the B. & B. Department, while painting
the Trainmen's Room and E. X. Tower in Brooklyn Terminal, painted all Communication equipment in eac
Mr. J. A. Ryan, Communications Maintainer, be compensated four (4)
hours for work performed y employes outside the Scope of our Agreement.
/Carrier's File: SG-8-70/
OPINION OF BOARD: This is a Scope claim in which Signalmen allege that
painting reserved to them under the Agreement was performed
by Bridge and Building employees in violation of the Agreement. The alleged
violation occurrood on March 27, 1970 and gives rise to a claim that Mr. J. A.
Ryan, Communications Maintainer, be compensated for four (4) hours work.
Notice of the instant dispute was given to the International Brotherhood of Teamsters, Local 808
employees; such organization did not file a submission herein.
The Agreement between the parties, bearing effective date of May 1,
1954, contains the following Scope Rule.
"SCOPE
These Rules, subject to the exceptions hereinafter set forth, shall constitute an Agreement by
and between Wm. Wyer as Trustee of the Long Island
Rail Road Company, D.=btor and Telegraph and Signal
Department Employes of the aforesaid Debtor Company
of the classifications herein set forth engaged in
the installation and maintenance of all signals,
interlocking, telegraph and telephone lines and
equipment including telegraph and telephone office
equipment wayside or office equipment of communicating
systems (not including such equipment on rolling
I
· c~P
Award Number 19479 Page 2
Docket Number SG-19443
"stock or marine equipment), highway crossing protection (excluding highway crossing gates not o
in conjunction with track or signal circuits), including the repair and adjustment of telegraph, tel
telephone and signal instrument cases, car retarder
systems, electric strip type switch heaters and all
other work in connection with installation and maintenance thereof that has been generally recognize
as telegraph, telephone, or signal work--represented
by the Brotherhood of Railroad Signalmen of America
and shall govern the hours of service, working conditions and rates of pay of the respective positio
and employes of the aforesaid Debtor Company specified
herein, namely, foremen, assistant foremen, leading
maintainers, leading signalmen, signal maintainers,
telegraph and signal maintainers, telegraph and
telephone maintainers, signalmen, assistant signalmen,
and helpers.
"EXCEPTIONS
(a) This Agreement shall not be construed as
granting to employes coming within its Scope the
exclusive right to perform the work of installing
or maintaining other than Railroad owned facilities
or equipment located on the property of the Long
Island Rail Road Company, Debtor, Wm. Wyer, Trustee.
(b) This Agreement shall not apply to inspectors
or assistant inspectors in the offices of the Chief
Engineer and Engineer Maintenance of Way and such
inspectors or assistant inspectors shall not be required or permitted to perform any of the duties o
employes of the classifications set forth in this
Agreement."
In addition to the Scope Rule, a February 16, 1954 Letter Agreement
reads in pertinent part:
"This will confirm oral advice given you during
our conference today that Telegraph & Signal Department Employes will continue to paint Telegrap
Signal equipment installed and maintained by the
Telegraph & Signal Department Employes of the type
and character now painted by such employes."
' .I
Award Number 19479 Page 3
Docket Number SG-19443
On March 27, 1970, Bridge and Building employees painted the Trainmen's Room and
E.
X. Tower in Brooklyn Terminal. In the course of the work,
these employees painted communications equipment, consisting of, in the Trainman's Room, w generator
E.
X. Tower, a
cable terminal box and a table on which an electrowriter was placed. Excepting
the table, all of the equipment was permanently mounted on or in the walls.
On the property Carrier denied the claim on the ground that the
painting was for decorative purposes and had no connection with maintenance
of communication equipment. Carrier asserted further that the Bridge and
Building painters did not remove or install any equipment accruing to Signalmen.
In its submission Carrier advanced the further contentions that (1) encroachment
on signalmen's work by B&B employees, if any, was accidental and not specifically
done at Carrier's direction, and (2) Rule 26 was violated because, although
it followed the proper chain of officers on the property in progressing its
appeal, the Organization failed to give notice of rejection of decision to
the officer immediately preceding the highest officer designated by Carrier
to hear appeals. Carrier acknowledges that the foregoing (2) was not raised
on the property, but asserts nonetheless that it is properly before the Board.
In its submission the Organization directly challenged the "decorative
purpose" defense. It asserted that the primary purpose for painting equipment,
buildings, etc., is to protect against weather and the like and that decorative
purposes are also met is a contingent benefit of no consequence herein. In
its rebuttal statement, the Organization asserted that the "accidental encroachment" contention was
not being raised on the property, could not be properly raised before the
Board.
RULINGS ON PETITIONER'S CONTENTIONS
The record :1-arly =otablis'''es that ccreain pieces of co^mwnication
equipment wer: paintad ty employees outside the Scope o- the Signalmen's Agreement at the place and
on the pr3perty and t=in3 procec:ural rather than jurisdictional in nature, will
not to cnnsiecre·d herein. Accor._in.,1y, the question =or decision by the Board
is wh=ther the disputed painting is roscrv=.d to Signalmen by the Scope Rule of
ti:r.ir A;rcement with Carrier.
AS
pertinent :o this case the Signalmen's Scope Rule embraces the
'maint-nan(- o... t=l=graph and. te1=phone lines and equipment including
t~l-graph an-: ·_^lcploone o,-:-ice eq,:ipm-.nt uaysid~ or office cquipwert of comn.unicatin~
. ··x.
Award Number 19479 Page 4
Docket Number SG-19443
above description of communication equipment. Thus, Petitioner must establish
that the painting of such equipment was for a "maintenance" purpose, as against
Carrier's claim of a "decorative" purpose, to show a Scope Rule violation.
The burden of proving the requisite facts by a preponderance of the evidence
lies, of course, with the Petitioner.
However, Petitioner has not offered any evidence of probative value
tending to meet this burden. Instead Petitioner has made the assertion that
the primary purpose of the painting was to protect against weather and the
like, i. e. maintenance, and that any contingent decorative benefit was inconsequential. Though this
conceive to be the correct application of the instant Scope Rule, the major
problem is that Petitioner has offered no more evidence to prove "primary
purpose" of maintenance purpose than it has offered to prove an unqualified
"maintenance" yurpose. In other words Petitioner's assertion is a conclusion
which we do not take to be self-evident; hence, even if "primary purpose"
was the proper criterion, we would not be able to find that Petitioner has
supported its conclusion by a preponderance of the evidence.
Consequently, on the record before us, we cannot find that Petitioner
has supplied the factual evidence necessary to establish the alleged violation
of the Scope Rule. We shall therefore dismiss the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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 no Agreement violation was shown.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
or, &
Dated at Chicago, Illinois, this 17th day of November 1972.