NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19804
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Inc. (Formerly Spokane, Portland
( and Seattle Railway Company)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned the work of
repairing switch points and frogs to employes holding no seniority under the
Agreement (Schedule No. 4) between the SP&S Railway Company and the Brotherhood of Maintenance o
(2) Welders E. Reiberg, H. Iffla, Helpers and/or Grinders V. Hilden,
E. Gonzales and Cutter M. Banning each be allowed pay at their respective
straight time rates for an equal proportionate share of the total number of
man hours expended in performing the work referred to in Part (1) hereof.
OPINION OF BOARD: In March of 1971, Carrier shipped two carloads of frogs,
switch points and other material from Vancouver to Tacoma.
The Organization claims that the frogs and switch points were repaired at
Tacoma, by employees with no seniority under the Agreement.
Rule 40 of the Spokane, Portland and Seattle Railway Company Agreement was preserved by Rule 69-
Rule 40 states:
"All work on Operating property, as classified in this
Agreement, shall be performed by employes covered by this
Agreement, unless by mutual agreement between the General
Chairman and designated Representative of Management, it
is agreed that certain jobs may be contracted to outside
parties account inability of the railroad due to lack of
equipment, qualified forces or other reasons to perform
such work with its own forces. It is recognized that
where train service is made inoperative due to conditions
such as, but not limited to, washouts or fires, individuals
or contractors may be employed pending discussion with respect to such mutual agreement."
Carrier argues that the claim submitted to this Board is at variance from that submitted on the
claim urged a violation because of transfer of material, it also alleged a
violation because of transfer of work. The original money claim requested
Award Number 20042 Page 2
Docket Number MW-19804
2080 hours at straight time rates for each Claimant, whereas the claim
presented here requested straight time rates as related to the actual time
spent in performing the repair work. We do not find that the claim presented
to the Board is substantially different from the Statement of Claim presented
to the Carrier on the property (see Award 16607 (Devine)), nor do we find
the altered wording prejudicial to Carrier's rights.
Carrier states that the Organization failed to establish that Rule
40 reserves the repair work in question to Claimants. That Rule reserves all
work on the operating property, as classified in the Agreement, to employees
covered by the Agreement, with certain exceptions not here material.
While the Organization cited Rule 40 on the property, the entire
Agreement is before us and we may consider other Rules as they may clarify
that Rule. Rule 64 suggests that repair of frog and switch points is reserved to Welding employees.
appear to anchor its defense upon an assertion that Claimants were not the
appropriate employees to perform the repair work; but urged that the Organization had not proved tha
Claimants assert that the Carrier would not have shipped the
material to Tacoma unless it was for repair work. We cannot indulge in that
type of speculation. In order to prevail, the Organization must show that
repair work was, in fact, performed by employees not subject to the Agreement.
The record on the property only establishes that 11 frogs were repaired at
the Tacoma Store Department. Our Award must be limited accordingly.
Claim (1) is sustained to the extent of finding a violation of the
Agreement regarding repair of 11 frogs.
Concerning Claim (2) the Carrier raises the defense of "full employment." This Referee has fully
and has noted that full employment is not a deterrent to an Award of damages. Claimants are entitled
the amount of time expended by non-Agreement employees on repair of the 11
frogs. Accordingly, the matter will be remanded to the parties to resolve
the question of the specific amount due Claimants concerning the repair of
the 11 frogs,
consistent with
the
Opinion
of this Board.
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;
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Docket Number MSJ-19804
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 the Agreement was violated.
A W A R D
Claim (1) is sustained to the extent stated in the
Opinion of the Board.
Claim (2) is remanded to the parties as set forth
in the last paragraph of the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1973.