Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27588
THIRD DIVISION Docket No. MW-27195
88-3-86-3-270
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher 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 other than
B&B Department employes to clean the sand trap at the Duluth Storage Facility
Building on December 19, 1984 (Claim No. 1-85).
(2) Because of the aforesaid violation, the senior furloughed B&B
Mechanic on the Missabe Division shall be allowed two (2) hours and forty (40)
minutes of pay at the B&B mechanic's straight time 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 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 waived right of appearance at hearing thereon.
On December 19, 1984, an ore Dock employee, assigned under a different Craft's Agreement noticed tha
cleaned. He lifted the grate and removed debris from the trap. Petitioner
herein charged that work of this nature is reserved to B&B Department employees assigned under i
minutes pay for the senior furloughed B&B Mechanic.
The Organization contends that Supplement No. 9 to its Agreement,
reading in part:
"SUPPLEMENT NO. 9
Form 1 Award No. 27588
Page 2 Docket No. MW-27195
88-3-86-3-270
Jurisdiction of Work-Sheet Metal
Workers - Maintenance of Way Employees
SANITARY PLUMBING FACILITIES
B&B Employes will install, maintain and relocate all plumbing facilities."
reserves the work involved exclusively to its members.
We have previously had occasion to consider Supplement No. 9 with
respect to the allocation of work listed therein to B&B employees in another
context of work. In Third Division Award 23832, involving grade crossing
repairs, we wrote:
"The issue in this dispute centers on one principal and two
derivative questions. The first question to be answered is:
Is Supplement 9 (supra) clear and unambiguous in allocating
to B&B workers installation, renewal, replacement and repair of all (every kind of) grade crossi
Careful reading of Supplement No. 9 suggests no ambiguity
with respect to assignment of work on grade crossings. It
clearly states that 'B&B employes will install, renew, replace and repair all grade crossings...
The structure of the Rule with respect to plumbing facilities is identical to its structure with
inclined to agree with results reached in Third Division Award 23832 with respect to the tasks under
language used in, with respect to plumbing facilities, Supplement No. 9 can
produce no other result. Supplement No. 9, without ambiguity, clearly states
that B&B employees will
...
maintain
...
all plumbing facilities. Lifting a
grate and removal of debris from a drain trap most surely must be considered
maintenance of plumbing facilities. The work was performed by an individual
not working as B&B employee and was in violation of Supplement No. 9.
A W A R D
Claim Sustained.
Form 1 Award No. 27588
Page 3 Docket No. MW-27195
88-3-86-3-270
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. v - Executive Secretary
Dated at Chicago, Illinois this 27th day of October 1988.
DISSENT OF CARRIER MEMBERS
TO
AWARD 27588 (DOCKET MW-27195)
REFEREE FLETCHER
The claim that:
" ....Carrier violated the Agreement when it assigned
other than B&B
...."
(Statement of Claim) (Emphasis
added).
is clearly refuted in the Majority's recital of facts;
"On December 19, 1984, an Ore Dock employee, assigned
under a different Craft's Agreement noticed that a
sand trap in his work area needed to be cleaned. He
lifted the grate and removed debris from the trap."
In the absence of evidence that Carrier had improperly assigned the work,
the claim should have been found wanting proof of a violation. Third Division
Awards 18652, 18996, 20721, 22091; Second Division Award 8234.
Carrier did not do what the claim asserts and it should not have been held
liable.
We Dissent.
P. V. Varga
M., W.~hu
R. L. Hicks
M. C. Lesnik
,1 . Yost