NATIOTIAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number
MW-233+1
George E. Larney, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Terminal Railroad Association of St. Louis
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier used B&B forces to
clean snow from switches at Madison, Illinois from 12:00 midnight on January
13,
1979
to
7:30
AM on January
15, 1979
instead of using Track Laborers Ernest
Peiffer and Lonnie Guion for such overtime service (System File TRRA
1979-3).
(2) Claimants Ernest Peiffer and Lonnie Guion each be allowed twentythree and one-half
(23-1/2)
hours of pay at their respective time and one-half
rates and eight
(8)
hours of pay at their respective double time rates as a
consequence of the aforesaid violation."
OPINION OF BOARD: Rule
6
of the Controlling Agreement bearing effective date
of May 1,
1952,
revised as of September 1,
1965,
provides
that employes belonging to the Organization shall have seniority in either one
of two sub-departments to wit, Bridge and Building Sub-Department or Track
Sub-Department. Claimants herein have established and hold seniority as track
laborers within the Track Sub-Department.
On the claim dates in question, Carrier assigned two mechanics of
the Bridge and Building Sub-Department to remove snow from switches at W. R.
Tower at Madison, Illinois. The Organization on behalf of the Claimants
submits the work of removing snow belongs generally to employes in the Track
Sub-Department and specifically to the two Claimants on the dates in question
based on their seniority status within the sub-department. In support of its
position on this latter point, the Organization cites in relevant part the Track
Sub-Department's Classification of Work as set forth in Rule
2
of the Controlling
Agreement, which reads as follows:
"track Laborer: An employe assigned to maintaining, repairing
or construction of track, including stability of roadbeds,
loading or unloading track material and miscellaneous labor
work not performed by employes in other classifications shall
constitute a Track Laborer."
The Organization contends the subject work of snow removal falls
under the category, maintaining of track. In contrast, the Organization cites
the quite lengthy Classification of Work set forth for employes of the Bridge
and Building Sub-Department, also contained under Rule
2,
and notes that
nowhere is there any reference made to snow removal specifically or anything
having to do with maintaining of track. The Organization notes Rule 2 provides
that motor truck operators when not operating the trucks may be assigned by the
Award Number
2339:
Page 2
Docket Number T&T-23341
Carrier to perform work in either sub-department to the extent of their
capabilities, with the exception of performing skilled work of ironworkers.
However, the Organization further notes the two employes in the Bridge and
Building Sub-Department assigned to remove the snow from switches were mechanics
and not motor truck operators.
Additionally, not only does the subject work accrue to employes of
the Track Sub-Department by way of Agreement Rule but also, the Organization
submits, such work as of the nature involved here was customarily and
historically been assigned to Track Sub-Department employes.
Carrier notes as background to the dispute that severe weather
conditions of snow and sleet storms were prevalent in the St. Louis Metropolitan
area in mid-January of
1979,
requiring it to work employes of both Maintenance
of Way Sub-Departments a substantial number of overtime hours in an effort to
maintain operations at as nearly a normal level as possible. Carrier further
notes that under such conditions the primary function of the Maintenance of
way employes is to clear switches, walkways, roads and certain structures of
snow and ice.
Carrier argues there is no rule in the Controlling Agreement which
provides that the work of sweeping snow and ice from switches is work accruing
exclusively to employes of any Maintenance of Way Sub-Department, nor is it
work accruing exclusively to Track Sub-Department employes by virtue of past
practice, custom or tradition. Moreover, Carrier submits, nothing in the
Rules cited by the Organization as having been violated, prohibits other
employes from performing the disputed work. Carrier asserts the work of
sweeping snow and ice from switches is work which has historically been
performed by employes of various classes and crafts and therefore is not
reserved exclusively to any one of them. Thus, Carrier submits, in the absence
of specific agreement language such as here, past and accepted practice becomes
controlling. Carrier argues that in such instances where employes belong to the
same craft but are classified in different classes of work, the burden of proving
exclusivity on the part of one class is greater than in other jurisdictional
disputes. In support of its position on this point, Carrier cites in relevant
part Award 201125, wherein the Board held:
"It is well established that Claimant must bear the burden
of praying exclusive jurisdiction over work to the exclusion
of others. This Board has also found that when there is a
jurisdictional question between employes of the same craft
in different classes represented by the same Organization,
the burden of establishing exclusivity is even more heavily
upon Petitioner (Awards
13083
and 13198)."
Carrier argues the Organization has completely failed in its burden
to prove the disputed work belongs exclusively to employes of the Track SubDepartment.
Notwithstanding the foregoing arguments, Carrier submits that upon
its investigation of the surrounding circumstances its findings, based on
Award Number
23894
Page
3
Docket Number
MW-23341
information provided by Supervisor, Assistant Chief Engineer, C. R. Perkins,
shows the two mechanics of the Bridge and Building Sub-Department did not
actually perform the disputed work as alleged by the Organization. Carrier
cites Perkins' account in summary form as follows:
"Sometime shortly after
5:30
P.M., on January
14, 1979,
the
two Building and Bridge mechanics, Jimmie L. Thompson and
Roger Scott, called me at the Coordinator's Office at
Madison Yard advising they had completed clearing stairways
and walkways around WR Tower, in Granit City and asked for
further instructions. I told them at the time to report to
me at Madison Yard which they did.
When Thompson and Scott arrived, I inquired if they wanted
to be relieved or remain on duty and they elected to remain
on duty. I then instructed them to go to Track Supervisor
McKeown's Office and remain there so I could easily locate
them, if and when they might be needed."
Carrier notes Perkins maintains he never did call them during the
remainder of the night in question, thus submitting Thompson and Scott did not
perform the disputed work on the claim dates as so alleged.
We note from a close and careful review of all the evidence before
us that neither party has provided substantive proof of its position. What we
are faced with is mere assertion from both parties that their account of the
events equates to the truth of the matter. Such mere assertion is of course
completely self-serving and in the absence of any substantive proof leaves
this Board stymied in its deliberation and capacity to render a fair and
intelligent ruling. Accordingly, without benefit of the information required
to determine first, whether the disputed work was actually performed by Thompson
and Scott, and second, whether the work is reserved exclusively to employes of
the Track Sub-Department either by contract language or past practice or both,
we find we must dismiss this instant 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, 193?;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Claim be disco=ssed.
Award Number
23691+
Page
Docket Number
IV-23341
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
-~ _
By
~=~-~,LE~LCt-,,
~~ - v
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day of May
19f2.