Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28037
THIRD DIVISION Docket No. MW-27321
89-3-86-3-432
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:
(Norfolk and Western Railway Company (formerly
(The Pittsburgh and West Virginia Railway Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned Track
Department employes instead of Welding Department employes to perform torch
cutting work beginning March 28, 1985 (System File MW-ROK-85-3).
(2) As a consequence of the aforesaid violation, Welding Department
employes W. McWreath, Jr., L. Whitaker, G. Cooke, R. Federer, Jr., H.
Longstreth, Jr., R. Parry, M. Montani and M. Bungert shall be allowed all
straight and overtime hours that Track Department employes perform torch
cutting work beginning March 28, 1985 continuing until the violation is
corrected."
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.
Commencing sometime in 1983 Carrier began assigning cutting torches
to section crews and track patrolmen to be used as needed in removing rusted
bolts and washers, cutting rail, burning rods and clip bolts in instances
where a torch could be used in place of a wrench, hammer or chisel. On April
1, 1985 the Organization presented a Time Claim on behalf of eight welding
department employees contending that they were now being deprived of work as a
result of the assignment of cutting torches to track department personnel.
This Claim alleged that welding department employees have, since 1967, had an
exclusive right to use such torches.
Form 1 Award No. 28037
Page 2 Docket No. MW-27321
89-3-86-3-432
Carrier's basic defense to the Claim is that track forces have always
been furnished necessary tools for the performance of their duties. These
tools now include cutting torches which were placed with track crews and patrolmen to allow them to
welding but were used in a manner incidental to work generally performed by
track crews.
At the outset we must observe that the Organization has not cited a
single instance where track crews used a cutting torch to complete work which
previously had been exclusively performed by welding department employees. Essentially the substance
with the placement of cutting torches in the tool inventory of to track crews
because, since 1967, such equipment had not been available to such crews.
We have often held that it is not the tool that is used but the
nature of work performed which determines the class of employees to be used.
In Third Division Award 10024 we considered an allegation that a violation
occurred when track department employees did the work of welding department
employees when an acetylene torch was used for cutting rails and track bolts.
In denying that Claim we stated:
"Where the cutting to be performed is incidental to
track work, we find no language in either the Scope
Rule or the seniority provisions which we can invoke
to restrain the Carrier from supplying the track Gang
with a cutting torch to do work incidental to the
removal of rails."
This Claim will also be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _
Nancy J e r - Executive Secretary
Dated at Chicago, Illinois this 10th day of August 1989.