NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-19977
Frederick R. Blackwell, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Louisville and Nashville Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood
that:
(1) The Carrier violated the Agreement and established practice thereunder when it assigned sign
to remove coal, dirt or other debris from under the retarders at Boyles
Hump, Birmingham, Alabama on March 8, 18, April 26, 27, 28, 29, May 3,
4, 5 and 6, 1971 (System File 1-16 /E-304-12 E-304).
(2) Foreman J. H. Rutland and Track Repairmen R. Reed, L. L.
Gordon and W, Hayes each be allowed eighty (80) hours of pay at their
respective straight time rates.
OPINION OF BOARD: The issue here is whether MofW Employees or Signal
Department Employees are entitled to the work of
cleaning coal, dirt, and other debris from beneath the car retarders
at Boyles Hump, Birmingham, Alabama. Prior to this dispute, track
forces of the MofW Department performed the disputed work at Boyles
Hump; track forces also performed similar work at Decoursey Yard,
Covington, Kentucky.
The Carrier's defense is that the work is reserved to Signal
Employees because their Scope Rule specifically covers "maintenance
of .. . car retarders and car retarder systems." The particulars of
Carrier's position that the work was maintenance of car retarders are
found in a July 6, 1971 letter from Carrier's Division Engineer to the
General Chairman, and in a September 28, 1971 letter from the Division
Engineer to Carrier's Assistant Vice President.
"Letter of July 6, 1971
The cleaning on or about the retarders that was
performed by the Signal men on the above dates was to
clean the retarder and the mechanism of the retarder
so that the retarders would work properly and they did
not do any cleaning of the track or any work pertaining
to the track."
Award Number 20142 Page 2
Docket Number MW-19977
"Letter of September 28, 1971
On the dates claimed, the signal forces cleaned
dirt from around the Fulcrum pins to facilitate greasing
of the fittings which is necessary on a two-week schedule
period. In addition, the dirt was pulled from under the
lower lever as it was interfering with proper cylinder
operation. Most of the dirt in and around the Fulcrum
pin has to be blown out with the air hose. Also, air hose
was used in cleaning the top side of the retarder. The
cleaning of the retarder has always been considered signalmens' work and we do not think that there
track work done.
This work was done under traffic and one man mostly
watched the traffic as a safety measure. Signalmen are
best acquainted with work on retarders under traffic."
While the Petitioner concedes that, to an extent, the work of
cleaning on or about the retarders is maintenance work reserved to the
Signalmen, the Petitioner argues that the line between retarder-maintenance and track work was cross
from under the retarders to the bottom of the tie. (Petitioner's Emphasis) Carrier's r
puts the parties in general agreement that the cleaning work went to some
depth beneath the retarders. But depth is not the decisive fact in this
dispute; the reason for the depth, whether related to the retarders or
to the tracks, is decisive on the issue of which craft should have done
the cleaning work. In this regard the Carrier stated from the outset
that the reason for the work was to maintain the retarders; Carrier admitted that dirt was pulled fr
that this, too, was
maintenance to
permit proper cylinder operation.
The Employees did not challenge the reason advanced by Carrier and, more-.
over, the Employees never asserted that the reason for the work pertained
to the tracks. The mere fact that the cleaning was under the retarders
and down to the bottom of the tie does not prove that the work belonged
to MofW Employees, nor does such fact show that the work was not retarder-maintenance. In these circ
has not carried its burden of proof, and hence, we must accept as fact
the Carrier's assertion that the reason for the work was to maintain
the retarders.
Award Number 20142 Page 3
Docket Number MW-19977
In conclusion we note that, as a result of a MofW claim
filed in 1961, MoiW Employees now perform work at Decoursey Yard,
Covington, Kentucky, which appears to be similar to the work in
dispute here. This does not affect the instant dispute. The Decoursey situation does not change the
work in the dispute before this Board, nor does it change the language of the Agreement Rules which
short, this case turns on the fact that Petitioner did not refute Carrier's asserted purpose for the
that the work was done for the purpose of maintaining the retarders.
In view of the foregoing, and on the whole record, we shall
deny 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
The claim is denied as per the Opinion.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 15th day of February 1974.