NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25730
Herbert L. Marx, Jr., Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Green Bay and Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement, when, on November 30,
December 1, 2 and 3, 1982 and from December 6, 1982 through December 27, 1982,
it assigned a Stores Department employe to cut brush on its right-of-way
between Mile Post 10 and 19 on its New London Division and between Mile Post
198 and 82 on its main line.
(2) Because of the aforesaid violation, furloughed Machine Operator
B. J. Byng shall be allowed pay at the machine operator's rate for an equal
number of man-hours expended by the Stores Department employe in performing
the work referred to in Part (1) hereof."
OPINION OF BOARD: This Claim concerns assignment of work in cutting brush
to other than a Maintenance of Way employe, commencing on
or around November 30, 1982. Such work was performed by an employe
represented by the International Brotherhood of Firemen and Oilers, which
Organization was advised of the dispute, filed a Response and appeared at the
Referee Hearing herein.
There is little or no dispute that the work involved, absent any
other factors, is recognized by Rule 2 as work to be performed by Maintenance
of Way employes.
There is, however, another significant factor to be considered. On
October 9, 1964 an Agreement was signed by Representatives of the Carrier, the
Firemen and Oilers, and System Federation #94, providing in pertinent part as
follows:
"IT IS HEREBY UNDERSTOOD AND AGREED:
That effective October 15th, 1964 two
Maintenance of Way Employees, i.e., George
Heimke, Foreman, Material Store Yard and
Wendel 0. Nelson, Crane Operator, Material
Store Yard, will be transferred from the
Maintenance of Way roster to the Firemen and
Oilers roster. The duties which they are
presently performing will also be transferred
to the Firemen 5 Oilers, such as: The Foreman
will retain and be in charge of all Store Yard
Material which is not presently under the
jurisdiction of the Stores Department but
Award Number 26018 Page 2
Docket Number MW-25730
"which is now under the Maintenance of Way
Agreement; the Crane Operator will retain the
position of Crane Operator under the Firemen 6
Oilers. Each will hold their same relative
seniority status at the bottom of the Firemen
6 Oilers roster as they held under the
Maintenance of Way . . . .
The Carrier maintains, without specific contradiction, that since
1964 work by the transferred Firemen and Oilers employe and his successor has
included brush cutting work of the type described in the Claim.
The Organization points out that it was not a signatory to the 1964
Agreement and that its own Rules Agreement with the Carrier is dated 1974,
which acts to supersede any previous arrangement as to work jurisdiction under
Rule 2.
The Board concurs with the Carrier's view that the 1964 Agreement
could hardly have been effectuated without the knowledge and concurrence of
the Maintenance of Way Organization, providing as it does for the actual
transfer of employes and "duties" from its coverage. Failure to challenge the
results of such transfer for 20 years appears to solidify this view. There is
no basis to assert that the 1974 Agreement cancelled the 1964 Agreement. In
these circumstances, the Claim for work performed by the Firemen and Oilers
employe must fail.
FINDINGS: The Third Division of the Adjustment Board, after giving the
parties to this dispute due notice of hearing thereon, and upon the
whole record and all the evidence, finds and holds:
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:J~G~h
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 28th day of May 1986.