NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20755
William M. Edgett, Referee
(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 Agreement was violated when a carman and a roundhouse
welder were used to construct a new catwalk and guard railing along the north
pit of the diesel pit at Clyde, Illinois on February 8, 9, 10 and from February 12 through 16, 1973
(2) B&B Foreman C. A. Lawson, B&B Carpenters D. L. Johnston, V.
Cavazos, B&B Helper D. Gipson and Truck Driver M. Truan each be allowed 11.2
hours of straight-time pay and 1.6 hours of time and one-half pay.
(3) Welder D. Kline and Welder Helper J. Bradley each be allowed
28 hours of straight-time pay and 19 hours of overtime pay.
Lhe claim contemplates payment at the claimants' respective contractual
rates. The hours claimed for each claimant represent an equal proportionate
share of the total time consumed by the caiman (Part 2) and by the roundhouse
welder (Part 3)f .
OPINION OF BOARD: Carrier had a catwalk and guardrailing approximately 235
feet long built along the north pit of the diesel pit at
Clyde,. Illinois. The work was performed by caxmen and according to the employees it took a total of
their claim on Rule 55 of the Agreement and say that that Rule clearly places
the work within the scope. In denying the claim Carrier stated:
"It has always been the responsibility of the Mechanical
Department to manufacture and maintain portable ramps which
are used in the Roundhouse of Diesel Repair facilities in
connection with repairing and maintaining of locomotives."
It is necessary to look closely at the work performed in this instance to see whether it could b
facility. The very size of the job does not argue well for defining it as
portable. In the ordinary understanding of things one would hesitate to
describe a structure 235 feet long as portable. It is not necessary to rest
heavily on that point, however, because the record clearly shows that the ramp
was tied in to the building by welding it to the structural beams and by the
use of securement rods. Although this point is not determinative, it would
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Award Number 20892 Page 2
Docket Number MW-20755
seem that the ramp met the legal definition of a fixture. Both its purpose
and annexation tend to support that view. All of these factors serve to
undermine Carrier's chief contention, that is, that what was built was a
"portable" ramp sad Carrier has not contended that the construction of permanent additions to the bu
The Carmen were given notice of the pendency of this dispute and
elected not to appear or participate in it.
The Board finds that Rule 55 gives the petitioning organization
jurisdiction over the work performed by employees from another organization
and that Carrier violated the Agreement by assigning the work to them. Carrier's argument with respe
of this type has been decided adversely to the position taken by Carrier in
this claim a number of times. (See Award No. 19924). The Board will follow
the line of decision discussed in that Award and will award damages for the
work opportunity lost by Claimants.
The employees presented Carrier with a detailed statement of the
number of hours worked by the Carmen. Carrier took issue with the statement
furnished by the employees, but it did not present any factual information
to support its contradiction of the employees' assertion. Carrier, of course,
is the party with the most direct access to the actual records of the work
and if it wished to contradict the claim it was under an obligation to place
in the record the facts upon which it based its denial. It chose not to do
so and the Board is left with a specific claim on the part of the employees
and a blanket denial on the part of the Carrier. Under these circumstances
the Board will accept the claim made by the employees as factually correct.
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
Award Number 20892 Page 3
Docket Number MW-20755
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
·~
A i
Executive Secretary
Dated at Chicago, Illinois, this 12th day of December 1975.