Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28442
THIRD DIVISION Docket No. CL-28285
90-3-88-3-68
The Third Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10237) that:
1. Carrier violated the effective agreement when, on September 16,
1986, a day on which no Janitors were assigned, it utilized the services of
outsiders to perform work involving moving furniture from one location to
another in its General Office Building, which work is reserved to employes
covered by said agreement:
2. Carrier shall now compensate the two (2) senior off-duty Janitors
eight (8) hours' pay at the time and one-half rate each for the above date."
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 September 27, 1986, Carrier utilized the services of an outside
contractor to relocate ten (10) offices and two (2) computer rooms in Carrier's CSS (Accounting) Dep
Building. A claim was filed on November 24, 1986, wherein the Organization
charged that Carrier violated Rule 1 (Scope Rule) of the Agreement. Specifically, the Organization c
covered positions and work and since the work of moving furniture was routinely performed by Janitor
constituted a blatant violation of Rule 1. Further, it asserted that since
the work was performed on a day not part of any Janitor's assignment, Carrier
violated Rule 4, by failing to call the regular employees to perform said
work. It acknowledged that Carrier has on occasion used outside contractors
and management personnel to perform such work, but quickly pointed out that it
challenged these assignments and filed claims.
Form 1 Award
No.
28442
Page 2 Docket
No.
CL-28285
90-3-88-3-68
In response, Carrier argued that historically outside contractors
have been used to move furniture between geographical locations and within
buildings and observed that at the various office buildings of Carrier located
in Greenville, Pennsylvania, the Maintenance of Way Department employees were
often used to move furniture, although janitors covered by the Clerk's Agreement performed the janit
Organization cannot establish that said work was traditionally performed by
janitors to the practical exclusion of other employees and outside contractors
and cannot establish any definable practice of exclusivity. It admitted, however, that janitors move
when the move involved one or two offices.
In considering this case, the Board concurs with Carrier's position.
While there is evidence that janitors occasionally moved furniture, there is
indisputable evidence that outside contractors and Maintenance of Way forces
also moved furniture. To be sure, the Organization is correct that work
traditionally performed by clerks under the Agreement's Scope Rule would
usually be protected work, but a showing must be made that it was routinely
performed by covered employees. We have no verifiable evidence that claims
were filed challenging the utilization of outside contractors or employees of
other crafts nor evidence via other arbitration awards that said work was
invariably considered janitor's work under a Clerk's Agreement. As the moving
party, the petitioning Organization has to show that the performance of a
disputed task was implicitly intended to be protected work and this requires
the proferring of proof that the contracting parties intended to exclude
others from performing said task. Upon the record, we have no such evidence.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
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Dated at Chicago, Illinois, this 21st day of June 1990.