Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28597
THIRD DIVISION Docket No. MW-28178
90-3-87-3-809
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:
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned two (2) B&B
welders and one (1) B&B painter instead of B&B carpenters to perform repairs
on the Wooden Bridge at Mile Post 23.43 on the Hallam Branch beginning July
28, 1986 (System File M-430/860170).
(2) As a consequence of the aforesaid violation, furloughed B&B
Carpenters S. Ricks, M. M. Hoppes and M. 0. Wassenberg shall each be allowed
eight (8) hours of pay at the first class carpenter's rate for each work day
beginning July 28, 1896 and continuing for so long as B&B welders and a B&B
painter were assigned to perform repair work on the bridge in question."
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.
The three Claimants in this case hold seniority as Carpenters within
the Bridge and Building Subdepartment. They were on furlough on the dates for
which Claim is made.
The events giving rise to this dispute began on July 28, 1986, when
Carrier assigned B&B Gang 3441 to the vicinity of Mile Post 23.43 on the
Hallam Branch to redeck a bridge near that location. The Gang consisted of a
Foreman, 2 B&B Welders, 2 B&B Carpenters and one B&B Painter. The Organization took exce
Form 1 Award No. 28597
Page 2 Docket No. MW-28178
90-3-87-3-809
Claim, alleging that Carrier should have recalled the Claimants to perform the
carpentry work involved, rather than assigning two Welders and one Painter
from B&B Gang 3441, who hold no seniority as Carpenters. In support of its
Claim of exclusivity, the Organization relied during the handling of this
case on the property on Rules 4 and 8 which state respectively in pertinent
part:
"RULE 4 - SENIORITY GROUPS AND CLASSES
SHALL BE AS
FOLLOWS:
BRIDGE AND BUILDING SUBDEPARTMENT
Group 3
(e) 86B Welder
(f) Carpenter
x
Group 5
(e) Bridge and Building Painters
,t
"RULE 8. BRIDGE AND BUILDING SUBDEPARTMENT
The work of construction, maintenance and repair of
building, bridges, tunnels, wharves, docks, nonportable car buildings, and other structur
and similar structures as well as all appurtenances
thereto, and other work generally so recognized shall
be performed by
employes
in the Bridge and Building
Subdepartment.
Section 1 - Bridge and Building Carpenter:
An employe assigned to the construction, repair
and maintenance of buildings, bridges or other
structures, (except structural, iron or steel work
provided for in Section IV), including the building
of concrete forms, erecting false work, etc., or who
is assigned to miscellaneous mechanic's work of this
nature, shall constitute a bridge and building carpenter.
Form 1 Award No. 28597
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90-3-87-3-809
(b) B&B WELDER. Welding, burning and cutting
in connection with construction or repairs of
bridges, buildings and miscellaneous structures."
(Emphasis added)
"(d)
CARPENTER - FIRST
CLASS. General carpenter
work, laying out building and repairing buildings,
bridges and miscellaneous structures, operation of
wood working machines incidental thereto, building
and repairing built-in office fixtures and setting up
cabinet work and milled material and cement finish
ing. Must be able to read blue prints.
Section III - Painter:
An employe assigned to cleaning or preparation of
surfaces to mixing, blending, sizing, applying of
paint, kalsomine or white wash, or other types of
preservatives, either by brush, spray or other
methods, or glazing, shall constitute a painter.
(c)
PAINTER - FIRST
CLASS. Mixing paints for
matching colors and applying paint or varnish in
connection with buildings (including fixtures), signs
and markets, and miscellaneous structures."
(Emphasis added)
It is the Organization's position that the foregoing Rules clearly
establish that the Carpenters, Welders and Painters are separate classes which
have distinctly delineated duties and responsibilities. In this case, the
Organization asserts, the disputed work was clearly reserved to B&B Carpenters
and Carrier violated the Agreement by assigning two 86B Welders and one B&B
Painter to perform such work.
Carrier advances several arguments in support of its position that
there is no Rule Agreement support for the instant Claim. First, Carrier
maintains that Rule 13 clearly provides for the assignment of composite Gangs
without restrictions. That Rule provides:
"(a) The assignment of composite gangs consisting of one or two mechanics from any of the
classifications in the Bridge and Building Subdepartment in Bridge and Building, Paint and Steel
Erection gangs working under the supervision of
respective foreman is permitted." (Emphasis added)
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Second, Carrier submits that Claimants are not proper Claimants and
had no contractual right to the work in question. Third, Carrier disputes the
Organization's contention that only carpentry work was performed on the Claim
dates. According to the Carrier, there was also welding work performed.
We have carefully reviewed the record in this case and the precedent
Awards cited by the parties. In particular, we take note of those cases which
state that where there is a jurisdictional question between employees of the
same craft in different classes, the burden of establishing exclusivity is
very great. See Third Division Awards 20425, 13198. However, in this case,
the Board is of the view that the Rules with which we are here dealing are
sufficiently specific so as to preclude necessity for proof of exclusivity.
In our opinion, Rules 4 and 8 reserve to the Carpenters the work alleged to
have been performed by the Painter and Welders on the date in question. Furthermore, although Carrie
several welds and cuts for the construction of this bridge " it never offered
any probative evidence to support that assertion. Even if it had presented
the necessary proof, however, it is clear that such work represented only an
incidental portion of the entire work project, performed by five employees for
more than 38 days. Moreover, Carrier's reliance upon Rule 13, Section 1 dealing with composite gangs
composite nature and should have been assigned to a BBB Gang comprised of B&B
Carpenters.
Finally, with reference to the Carrier's contention that the Claimants are not proper Claimants,
the question of who is named as Claimant is incidental since the essence of
the Claim is a Rule violation and penalty Claim. Therefore, even assuming,
arguendo, that another employee may have a better right to the Claim, Carrier
is not relieved of the violation and penalty arising therefrom. Third Division Awards 18557, 25830.<
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Y
'Nancy J. w1fr - Executive Secretary
Dated at Chicago, Illinois, this 30th day of October 1990.