NATIONAL RAILROAD ADJUSTEMENT BOARD
THIRD DIVISION Docket Number MW-19966
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Inc.
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned or otherwise permitted other than B&
erection work (steel tower) at Portland, Oregon from August 2 through August
13, 1971 (System File 374F/MW-84(s)-3, 9-11-71).
(2) The Carrier violated the "NOTE to Rule 55" when, without advance notice to or agreement with
the aforesaid work as indicated in (1) above.
(3) B&B Foreman L. Fricke, Asst. Foreman M. Middleton, Carpenters
H. Tucker, H. Katzberg, H. Dietrich, D. Paul, J. Dolson and S. Glenzer each
be allowed seventy (70) hours' pay at their respective straight time rates.
(4) Machine Operator D. Legore be allowed sixteen (16) hours` pay
at his straight time rate.
OPINION OF BOARD: In August 1971, Carrier commenced construction of a steel
microwave antenna tower at Portland, Oregon on the prop
erty of the former Spokane, Portland and Seattle Railway Company (SP&S). The
tower, 26 feet wide at its base and 120 feet high, was assembled into sections
on the ground and the assembled sections hoisted into place by a crane. Car
rier utilized employes from the Communication Department to perform the assembly
and an outside contractor for the crane operation.
The record indicates that the former SP&S Communication Department
employes were, at the time of the tower assembly, represented by the Brotherhood of Railroad, Airlin
1973 these employes have been represented by the International Brotherhood of
Electrical Workers (IBEW) and covered by the schedule Agreement between Carrier and that Organizatio
By letter dated August 19, 1971, Petitioner filed the instant claim
on behalf of the named claimants. Petitioner relies primarily upon its classification of Work Rule 5
Rule 69(c) also has been cited by Petitioner. The pertinent provisions of
the Agreement read as follows:
Award Number 20412 Page 2
Docket Number MW-19966
"RULE 55
"I. Steel Bridge and Building Mechanic.
An employe assigned to the setting of columns, beams,
girders, trusses, or in the general structural erection,
replacement, maintaining or dismantling of steel in bridges,
buildings and other structures and in the performance of
related bridge and building iron work, such as riveting and
rivet heating, shall be classified as a steel bridge and
building mechanic. NOTE: On former SP&S and NP, B&B carpenters performed this type of work a
Rule 44."
"NOTE to Rule 55: The following is agreed to with respect
to the contracting of construction, maintenance or repair
work, or dismantling work customarily performed by employes
in the Maintenance of Way and Structures Department:
"Employes included within the scope of this Agreement-in the
Maintenance of Way and Structures Department, including employes in former GN and SP&S Roadway E
and welding employes-perform work in connection with the construction and maintenance or repairs of
the dismantling of tracks, structures or facilities located on
the right of way and used in the operation of the Company in the
performance of common carrier service, and work performed by
employes of named Repair Shops.
"By agreement between the Company and the General Chairman, work
as described in the preceding paragraph which is customarily
performed by employes described herein, may be let to contractors
and be performed by contractors' forces. However, such work may
only be contracted provided that special skills not possessed by
the Company's employes, special equipment not owned by the Company, or special material available on
through supplier, are required; or when work is such that the
Company is not adequately equipped to handle the work, or when
emergency time requirements exist which present undertakings not
contemplated by the Agreement and beyond the capacity of the C,:mpany's forces. In the event the Com
work because of one of the criteria described herein, it shall
notify the General Chairman of the Organization in writing as far
in advance of the date of the contracting transaction as is pracitcable and in any event not less th
thereto, except in 'emergency time requirements' cases. If the
Award Number 20412 Page 3
Docket Number MW-19966
"General Chairman, or his representative, requests a meeting
to discuss matters relating to the said contracting transaction, the designated representative of th
promptly meet with him for that purpose. Said Company and
Organization representative shall make a good faith attempt
to reach an understanding concerning said contracting, but if
no understanding is reached the Company may nevertheless proceed with said contracting, and the Orga
progress claims in connection therewith.
"Nothing herein contained shall be construed as restricting
the right of the Company to have work customarily performed
by employes included within the scope of this Agreement performed by contract in emergencies that af
traffic when additional force or equipment is required to clear
up such emergency condition in the shortest time possible."
"RULE 69. EFFECTIVE DATE AND CHANGES
"C. It is the intent of this Agreement to preserve pre-existing rights accruing to employes cove
they existed under similar rules in effect on the CB&Q, NP, GN
and SP&S Railroads prior to the date of merger; and shall not ,
operate to extend jurisdiction or Scope Rule coverage to agreements between another organization and
Petitioner maintains that the express language of Rule 55(1) specifically
grants to B&B employes the general structural erection of steel in structures,
including the microwave tower here in issue. Accordingly, Petitioner argaes
that Carrier violated said rule by assigning the work to employes not covered
by its Agreement, i.e. the Communication Department employes. Additionally,
Petitioner contends that contracting out of the crane work without notification and conference with
a violation of the Note to Rule 55.
Carrier has denied the claim in its entirety, primarily on the ground
that no clear reservation of the work in question is found in Petitioner's
Agreement. On this premise, Carrier asserts that Petitioner has failed to demonstrate exclusive rese
practice or tradition, and, accordingly, urges that the claim must fail. In
this latter connection, Carrier points out that custom and practice relegates
the work to FBEW-represented Communication Department employes rather than to
Petitioner. Without prejudice to its substantive position, on the merits, Carrier insisted throughou
performed on the tower on dates of August 2, 3, 4, 5 and 6, 1971. Finally,
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Docket Number MW-19966
Carrier asserts arguendo that no damages should lie if a violation is found
because claimants were "fully employed" on the claim dates in question.
The IBEW, as interested third party was afforded the opportunity
to participate in the hearing in this matter and filed a submission dated
March 6, 1973. IBEW contends essentially that the erection of microwave
antenna towers is exclusively reserved to Communication Department Employes
by its Scope and Classification of Work rules with the merged Carrier. In
addition, IBEW asserts that no custom or past practice has been shown by
Petitioner to warrant the instant claim and, accordingly, urges that it be
denied.
In resolving this claim, we turn first to the argument of IBEW
that its rules are decisive on this claim arising on the former SP&S in
August 1971. Close examination of the record and the applicable Agreements
compels us to reject this position. The work in question was performed some
sixteen months prior to the consummation of Implementing Agreement No. 2 on
January 8, 1973 whereby IBEW assumed representative and schedule agreement
coverage of the former SP&S Communication Department employes. Accordingly,
the Scope and Classification of Work rules of the IBEW schedule can have no
relevance to the particular facts and circumstances of the instant claim.
It should be noted that we are not here deciding their relevance or determinative effect in future s
Turning to the specific Classification of Work Rule 55 (I), we
find that rule specifically classifies the work coming under the scope of
the Maintenance of Way Agreement on the former SP&S property. Said rule
clearly encompassed the erection of the steel tower for the microwave antenna
in August 1971. Therefore, we can only conclude that Carrier erred in assigning the work in question
Agreement, in violation of Rule 55(1). See Awards 3995, 10871 and 19924.
As to the claim for the crane operation work, we have ruled in
prior cases involving these same principal parties that the operation of a
crane is not the exclusive work of any craft, and we have cited with favor
Second Division Award No. 1829, to wit:
"It is the character of the work performed by the crane
that ordinarily determines the craft from which its operator shall be drawn."
See Awards 13517 and 14004. It follows ineluctably from the foregoing that
the crane work in connection with the tower erection in August 1971 was Maintenance of Way work for
record shows that this work was let to a contractor without notification or
meeting with the General Chairman as required by the Note to Rule 55, thereby
violating said provision of the Agreement.
i
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Docket Number MW-19966
As to the question of damages, Carrier asserts that the Claimants
were employed full time when the violation occurred. This Board has held
in numerous recent awards that notwithstanding "full employment" or the
lack of a specific rule granting monetary relief, pro rata damages may be
awarded upon the proven loss of work and earnings opportunity through Carrier misassignment of Agree
19552, et al. In our judgment, there was unquestionably lost work opportunity to claimants in the de
subject to the Maintenance of Way Agreement to perform work reserved to
them by the Agreement in August 1971.
As noted supra, there was some ambiguity on the record concerning
the actual number of days worked by the Communication Department employes
in the erection of the tower. Petitioner asserts it was August 2, 3, 4, 5,
6, 9, 10, 11, 12 and 13, 1971. Carrier has maintained
throughout that
the
Communication Department crew worked on the project August 9, 10, 11, 12, 13
and 25, 1971. Both parties concur that the crane was operated on August 10
and 11, 1971.
We do not find it necessary to decide the number of days and hours
actually worked on the erection of the tower. The make whole theory will be
satisfied by Carrier paying to each Claimant in Claim (3) his straight time
rate for the hours actually worked in erection by the Communication Depart
ment employes, as recorded in Carrier's records kept in the ordinary course
of business; but in no case less than the 48 hours as admitted by Carrier
on the record herein. See Awards 14004, 20042. As to Claim (4) there is no
such dispute and it is sustained accordingly.
We reiterate that the decision herein is based strictly upon the
Agreement, facts and circumstances applicable upon the former SP&S property
in August 1971 and cannot be deemed dispositive of questions regarding this
type of work on the merged property in futuro. Such claims will turn on
their merits if and when they arise.
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
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Docket Number MW-19966
That the Agreement was violated.
A W A R D
Claim (1) is sustained.
Claim (2) is sustained.
Claim (3) is sustained to the extent indicated in the Opinion.
Claim (4) is sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1974.