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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27025
THIRD DIVISION Docket No. MW-26248
88-3-84-3-669
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(Southern Pacific Transportation Company (Western Lines)

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned Purchasing and Materials Department forces instead of Bridge and Building Department forces to dismantle the wooden floor, anchored to a cement slab, at the South end of the 'Old Sawmill' in the Locomotive Works Facility at Sacramento, California, on February 10 and 11, 1983 (Carrier's File MofW 152-974).

(2) Because of the aforesaid violation, Foremen N. F. Shull and B. H. Mollart, Assistant Foreman P. Osiow, Welder T. A. Freeman, Carpenters J. E. Lee and S. R. Griffith and Steelman L. F. Childs shall each be allowed pay at their respective.straight time rates for an equal proportionate share of the ninety-six (96) man-hours expended by Purchasing and Materials Department employes in performing the work referred to in Part (1) hereof."

FINDINGS:

The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

In this dispute, both parties have raised issues and arguments in their Submissions to the Board that were not advanced on the property. Accordingly, this Board is pr were not raised on the property.

With respect to the questions properly before us, the significant events are as follows:
Form 1 Award No. 27025 Page 2 Docket No. MW-26248 88-3-84-3-669 (a) February 25, 1983: The Organization submitted its initial claim to the Carrier's Regional Engineer. It mainly asserted that, on the dates claimed, the Carrier assigned employees of the P 5 M Department to perform Bridge and Building Sub-Department work.

It then described the work consisting of "...dismantling a floor

54 feet by 60 feet which was anchored to a concrete slab in a

building located on the southeast end of the old sawmill, now

called the Track Distribution Center within the Sacramento Loco

motive Works Facility." The claim also included the names of

the employees of the P 5 M Department who allegedly did the

disputed work and asked for 96 hours compensation for the

Claimants.

(b) April 7, 1983: The Carrier's Regional Engineer denied the claim stating in pertinent part: "Have investigated above claim and find that the wooden floor referred to in said claim was not anchored to the concrete underneath, it was considered scrap lumber."

(c) May 9, 1983: The General Chairman appealed the decision of the

Regional Engineer. The appeal letter: (1) listed the names,

service date, occupation, and assignment of the Claimants;

(2) listed the names and title of the personnel who allegedly

did the disputed work as well as the number of hours each

worked; (3) cited the various Rules relied upon for support

of the claim; (4) described the claimed work by, in part,

stating "...commenced the stripping of inside wooden floor

which was anchored to cement slab and walls of a building

located at ...Sacramento, California," noting that the material

removed was permanently anchored and secured to the cement slab

foundation and consisted of 1"x4"x8' plywood sheeting which had

been cut to various dimensions and thereafter nailed to 2"x4"

boards covering an area approximately 54' wide x 60' long,

equivalent to 3,240 square feet; (5) stated that the Carrier's

Material Handling Foreman did not believe such work was that

of his department, but he was only following instruction; (6)

stated that "thereafter, Bridge and Building Sub-department

employees" (the Claimants) were called to complete the pro

ject; (7) quoted that part of Rule 1 - Scope on which it relied

as follows:

"These rules govern rates of pay, hours of service, and working conditions of employes in all sub-departments of the Maintenance of Way and Structures Department (not including supervisor employes above the rank of foreman) represented by the Brotherhood of Maintenance of Way Employes, such as: foreman and assistant foremen of bridges, buildings, tunnel, painter, construction concrete, mason, water supply, plumbing, paving, fence gang, pile driver, and all employes coming under the supervision of such foreman."

Form 1 Award No. 27025 Page 3 Docket No. MW-26248 88-3-84-3-669 (d) December 15, 1983: The Carrier again rejected the claim. It stated that because the initial claim of February 25, 1983, did not specify any Rules that allegedly had been violated and because the appeal letter of May 9, 1983, amended the claim, the claim was not the same and, therefore, was improperly before the Carrier, Moreover, it contended that: "The removal of a scrap wooden floor by employes of the Purchasing and Materials Department consisted of removal of a wooden floor layed over a concrete slab and was not anchored to cement as alleged. The removal of the floor was not a job which necessitated any knowledge or finesse. The floor was just ripped up by a fork lift and scrapped. In support of our position, we were handed three written statements dated May 10, May 24 and June 7, 1983, from Purchasing and Materials Department Supervisors in support of our contentions. In addition, Rule 1, Scope Rule of the current agreement, which simply lists categories and does not describe or define work to be performed, is general in nature. See Third Division, National Railroad Adjustment Board, Awards 12929, 12927, 12694, 10389, 11129, 15538, 19190, 19306, 19761, 20421, 21768 and 21898. Claimants were fully employed at the time and dates indicated and therefore lost no earnings as a result of the alleged violation."

The three statements obtained by the Carrier included one which essentially asserted that the wooden floor was not anchored to the concrete, that it was scrap lumber, and that it took approximately three (3) hours to remove. An that the floor was stripped, the lumber scrapped and "there had been been no work done to the concrete foundation." The remaining statement was from the Foreman who allegedly had stated that the work did not belong to his Department. This person wrote that he did not make a statement to the Organization's B68 Supervisors and that his cre on the "tearing up of flooring" for approximately four (4) hours.

(e) March 5, 1984: The Organization addressed the prior Awards the Carrier had relied upon when it rejected its claim. It again asserted its Scope Rule contentions and provided statements from the Claimants that the floor was attached and anchored to the concrete floor.

Form 1 Award No. 27025 Page 4 Docket No. MW-26248 88-3-84-3-669 (f) June 22, 1984: The Carrier rejected the claim, contending that nothing new had been brought forward to warrant a change in the decision rendered on December 15, 1983. Pursuant to Section 3, First (j) of the Railway Labor Act, as amended, notice was given to B.R.A.C. of this claim as a possible party of interest. B.R.A.C. has filed a submission, claiming that the work at issue is covered by its Scope Rule. The Board has carefully reviewed the record. We find that the considerable exchange between the and conflicting statements and that these are without sufficient evidence of probative value to consider in reaching a decision of this claim. Accordingly, while we would prefer dispute, we are constrained to dismiss the claim despite our reluctance to do so.

A W A R D

Claim dismissed. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest: Nancy J. f - Executive Secretary Dated at Chicago, Illinois, this 25th day of April 1988.