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:


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.



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
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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












                      ,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
Page 3 Docket No. MW-28178
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)

Form 1 Award No. 28597
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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.