Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29159
THIRD DIVISION Docket No. MW-27292
92-3-86-3-396
The Third Division consisted of the regular members and in
addition Referee Rodney E. Dennis 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
Bridge and Building Department forces to install a fire suppression system in
the 'MX' reclaimer at the Lakehead Storage Facility on April 18, 19, 22 and
23, 1985 (System File 28-85).
(2) As a consequence of the aforesaid violation, the two (2) senior
furloughed B&B mechanics shall each be allowed seventeen (17) hours of pay."
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.
In April, 1985, Carrier decided to install an automatic fire suppression system in the operator'
Handling and Storage facility in Duluth, Minnesota. The system was purchased
and, after some consideration, it was concluded by the Carrier that the work
of installing the system would be assigned to the Ore Dock employees represented by TCU. This work w
22, and 23, 1985. The Organization (MW) protested the assignment of the work
to them. It contended that the fire suppression system should have been assigned to Bridge and Build
Supplement No. 9 and the signed statements of forty-five employees to support
its Claim. Supplement No. 9 reads as follows:
Form 1 Award No. 29159
Page 2 Docket No. MW-27292
92-3-86-3-396
"SUPPLEMENT N0. 9
Jurisdiction of Work - Maintenance
of way - Ore Dock Employes
Commencing November 1, 1977, maintenance work to be
performed by Ore Dock employes or B&B Department
employes at the Duluth Lakehead, Steelton, or Two
Harbors ore storage facilities will be allocated as
follows:
Ore Dock Employes
1. Maintenance and running repair of bucket wheel
reclaimers, front end loaders, swing loaders,
sweepers, and other mobile equipment which may
be assigned.
2. Maintenance and running repair of rail-mounted
trapping machines.
3. Installation, maintenance and running repair of
hydraulic systems.
:..
Greasing of conveyor systems, except when performed in connection with installation of new
idlers or equipment.
Bridge and Building Department Employes
1. Maintenance and repair of conveyor systems and
equipment not specifically listed for Ore Dock
employees above.
New maintenance to be allocated to Ore Dock or B&B
employes will be allocated in accordance with the foregoing pattern of work distribution.
It is understood that the purpose of this Supplement
is to assist in the orderly distribution of work
between the crafts involved and is not to be interpreted as granting exclusive rights to work or
The text of the statements relied upon to support the Organization's
position all read as follows:
Form 1 Award No. 29159
Page 3 Docket No. MW-27292
92-3-86-3-396
"STATEMENT
FIRE EQ;'IPMENT AND EXTINGUISHER SYSTEMS
DULUTH, `!ISSABE 5 IRON RANGE RAILWAY
COMPANY
TO WHOM :T MAY CONCERN:
MY EXPERIENCE OR TO MY KNOWLEDGE THE INSTALLATION, REPAIR AND MAINTENANCE OF FIRE
EQUIPMENT AND EXTINGUISHER SYSTEMS HAS BEEN
TRADITIONALLY THE WORK OR THE MAINTENANCE OF
WAY EMPLOYES.
SIGNED
DEPT.
YEARS OF SERVICE "
Carrier based :ts position on Supplement No. 9 as well. It argued,
however, that Item No. :, under work assigned to Ore Dock employees, covers
the work at issue. Carrier considers the installation of the fire prevention
system in the cab of tie bucket wheel reclaimer to be in the nature of maintenance and, as such, :_
Employees.
It also argues that the statements by the forty-five employees submitted by the Organization have no
Claim of exclusivity o- system-wide application and, even if they did, Maintenance of Way work an- O
signed in 1977. The work of installing the fire suppression system in the cab
of the bucket wheel re: _aimer is maintenance work and should be assigned to
Ore Dock workers. The organization has not demonstrated otherwise.
The Board has reviewed the record and the numerous awards submitted
by the parties. As a result of that review, the Board concludes that Carrier
has presented the more 'persuasive position. The burden of proof in such cases
rests with the Organization. It is its task to persuade this Board that Contract language or, in :he
areas. The Organization attempted to persuade this Board that Supplement No.
9 does not apply to this dispute, but that Rule 2 (Seniority, Bridge and
Building Subdepartment) and Rule 26 (c) 6 (e), Classification of Work do
apply. The Board rejects that position. Because of a long history of jurisdictional disputes, the pa
Agreement (Supplement ';o. 9) to specifically address the problem in detail of
who does what work. hat Agreement takes precedent over all others in the
area of work distribut_on between Ore Dock and MW workers.
Form i Award No. 29159
Page
4
Docket No. MW-27292
92-3-86-3-396
The portion of Supplement No. 9 that applies to Bridge and Building
Department employees reads as follows:
"Bridge and Building Department Employes
1. Maintenance and repair of conveyor systems and equipment not speci:ically listed for Ore Dock emp
above.
New maintenance to be allocated to Ore Dock or B&B employes
will be allocated in accordance with the foregoing pattern
of work distribution."
When one reads this language, it is difficult to conclude that the
installation of a fire suppression system in the cab of a bucket wheel
reclaimer is covered under that language.
As to the statements of the forty-five employees submitted into the
record, this Board does not view these statements as probative evidence but
more in the nature of _eneral statements of what may have prevailed in the
past.
The Organizat_on submitted Third Division Award 27588 in support of
its position. This Board does not consider the issue involved in that case to
be germane to the instant dispute. We have, therefore, disregarded it in our
deliberation.
Based on the Irganization's inability to carry its required burden of
proof, this Board is compelled to deny the instant Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
/00,
0,or
Attest:
Nancy J. e - executive Secretary
Dated at Chicago, IL1_-ois, this 3rd day of April 1992.