Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27571
THIRD DIVISION Docket No. MW-26704
88-3-85-3-456
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Duluth Missabe and Iron Range Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned BRAC
Mechanics instead of Bridge and Building Department welders to fabricate a
swing loader boom at the Duluth Docks on June 11, 12, 13, 14, 15, 18, 22, and
25, 1984.
(2) As a consequence of the aforesaid violation, B&B Welders R.
Harvey and R. Julin shall each be allowed forty-six (46) hours of pay at the
welder's rate."
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 employees 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 waived right of appearance at hearing thereon.
Claimants are welders in the Bridge and Building Sub-Department of the
Maintenance of Way and Structures Department. At the time this dispute arose,
they were regularly assigned at Carrier's Duluth Docks.
During June of 1984, Carrier assigned two mechanics who hold seniority
under the Brotherhood of Railway and Airline Clerks' (BRAC) Agreement to cut and
weld structural steel to fabricate a new boom for the swing loader at the Duluth
Docks. The mechanics performed the work on June 11, 12, 13, 14, 15, 18, 22 and
25, 1984, expending a total of ninety-two (92) man-hours.
The Organization contends that the disputed work should have been
assigned to the Claimants. It argues that the welding of structural steel, particularly the welding
part as follows:
Form 1 Award No. 27571
Page 2 Docket No. MW-26704
88-3-85-3-456
"RULE 26
Classification of Work
(c) An employee assigned to construction, repair, maintenance or dismantling of buildings, bridg
building of concrete forms, erecting falsework, setting of columns,
beams, girders, trusses, or in _the general structural erection, replacement, maint
ings or other structures and in the performance of related bridge and
building iron work, such as riveting, rivet heating, or who is assigned to miscellaneous mechanics'
bridge and building Carpenter and/or Repairman.
(g) An employee assigned to the operation of any welding device
used in the performance of such work as repairing and tempering,
grinding, and slotting rails, frogs and switches constitutes a Track
Welder, except on rails at the ore docks B&B employees will perform
rail welding work. Bridge welding and any other welding in the Maintenance of <
(Emphasis added.)
In addition, the Organization asserts that the fabrication of booms from
structural steel has customarily and traditionally been performed by B&B employees. In support t
Carrier, on the other hand, insists that there is nothing in the language
of Rule 26 which could be construed as granting the exclusive right to fabricate
swingloader booms to the B&B craft. Indeed, Carrier argues, the true subject of
the rule is work pertaining to structures, particularly bridges and buildings.
Nowhere is there any evidence that the rule encompasses the "construction, repair, maintenance or di
It is also Carrier's position that there is no longstanding, systemwide
practice which would guarantee that the disputed work be assigned to B&B employees. Two prior in
this dispute on the property where B&B employees built similar extensions hardly constitute a pr
B&B employees probative evidence of historical exclusivity, Carrier stresses,
particularly since those statements are refuted by what Carrier claims is the
"common knowledge" that other employees, including Ore Dock employees (BRAC)
have fabricated parts or end-items over the years from the materials listed in
the employees' statements. Absent any evidence of work exclusivity either by
rule or practice, Carrier submits that this claim must be denied.
Form 1 Award No. 27571
Page 3 Docket No. MW-26704
88-3-85-3-456
We concur with Carrier's position that nowhere does the record in the instant case speak of B&am
work or that the work was regularly assigned to them as such. Based on our
reading of the plain and unambiguous language of Rule 26, it is clear that the
fabrication of a boom for a swingloader is not mentioned, or do we believe that
it falls within the rubric of a "structure" as that term is used in the Rule.
The record does reflect that on two occasions, the employees performed
work similar to that in question. However, we feel that this is not sufficient to show that the work
Claimants herein, nor does it unequivocably commit Carrier in the future in
its assignment of similar work.
By the same token, the statements of B&B employees cannot be deemed probative evidence, lack
and where Carrier has rebutted the employee's contention of exclusivity in fabricating items from th
Organization has not shown that the fabrication of a swingloader boom is work
reserved exclusively to its craft by rule, custom or practice.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest.
Nancy J. D v - Executive Secretary
Dated at Chicago, Illinois, this 29th day of September 1988.