NATIONAL, RAILROAD ADJUSTMENT BOARD
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THIRD DIVISION Docket Number MW-21553
David C. Randles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company (former Virginian R,y. Co.)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned assistant
roadmasters instead of Section Foreman S. A. Acord and Assistant Section
Foreman D. Morgan, Jr. to patrol track assigned to Section No. 2, G.R.B.,
New River Division (System File MW-MU-74-6/V-TC-18).
(2) Because of the aforesaid violation, the monetary claim presented on the property shall be allowe
'We are claiming time beginning July 9, 1974
4:00 p.m. to 7:30 a.m. until this duty is restored to our section foreman and whatever
men are necessary to patrol his respective
territory, as has been a practice for some 25
years on New River Division.
We are requesting that you pay the above employes
at their overtime rates for each day after their
regular tour of duty beginning July 9, 1974 at
4:00 p.m.'
OPINION OF BOARD: The Organization claims that the Carrier violated the
Agreement when it assigned three Assistant Roadmasters
to perform patrol work over a section of newly constructed railroad.
The contentions of the Organization in the claim are that this
work has been historically the work of Maintenance of Way employes, seven of
whom attested to that fact, and that the Claimants herein should be given
overtime benefits for the work that was improperly assigned.
The Carrier maintains that the Claimants do not have the exclusive
contractual right to perform said work, and, even if they did, the Claimants
could not have been able to perform it.
The issue at hand is the question of whether or not the Scope Rule
of the Maintenance of Way Agreement was violated. The Scope of work clause
in said collective bargaining agreement is specific in nature, to wit:
Award Number
21456
Docket Number MW-21553
SCOPE Rule No. 1
Page 2
"These rules shall govern the hours of service, working
conditions and rates of pay of all employes in the Maintenance of Way and Structures Department, inc
watchmen or tenders, track, tunnel and bridge watchmen, lampmen, pumpers, pile driver, crane and dit
train engine watchmen, camp cooks and camp attendants, draw
bridge tenders, roadway machine inspectors and repairmen,
pump repairmen, and pump repairmen helpers. This agreement
shall not apply to the following:
1. Supervisory officials of higher rank than foremen.
2. Clerical and civil engineering forces.
3. Employes in signal, telegraph and telephone
maintenance departments."
The burden of proof herein is upon the Claimants. The Board in
numerous decisions has held that such a claim must show system-wide exclusivity. Such exclusivity
The Scope Rule does not mention patrol work. Axiomatic to contract
language is the principle: To express one thing is to exclude another. To
be exhaustive in delineating a specific Scope provision is construed by the
Board to mean that others were meant to be excluded.
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 the Agreement was not violated.
The claim is denied.
A W A R D
ATTEST:
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Dated at Chicago, Illinois, this 18th
NATIONAL RAILROAD ADU,w
J'f
By Order of Third
day of Merch
1977.
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