The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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 were given due notice of hearing thereon.
On September 27, 1990, the Organization filed a claim on behalf of the Bellevue, Ohio, Signal Electronic Specialist charging that the Carrier improperly assigned certain work, which was allegedly covered by the scope of the applicable Agreement, to communication employees represented by the International Brotherhood of Electrical Workers (IBEW). More specifically, the claim alleges that the communication employees installed, maintained, tested and repaired a wayside identification system on various dates between August 14 and 30, 1990, at Vermillion and Willoughby, Ohio. Claimant seeks 128 hours at the overtime rate of pay. He also seeks what is apparently a four hour per week penalty payment for a continuing violation.
Most of the pertinent facts are not in dispute. Sometime in 1988, the Carrier began the installation of an Automatic Equipment Identification System at various locations on the property. This system identifies rolling stock via wayside devices so the Carrier knows the location of equipment moving across its property. Each piece of moving rail equipment has an identification tag which is a radio sensitive-reflective transponder. The transponder receives radio waves emitted from a trackside transmitter/receiver and bounces the waves back to the trackside equipment to be decoded with a microprocessor. The information is then conveyed by telephone line and modem to a central facility to keep track of the location of all rail equipment on the Carrier's system.
The Automatic Equipment Identification system (AEI) replaced the obsolete Automatic Car identification system (ACI). The ACI system involved the use of a wayside optical scanner which, using a high intensity light source, read a light reflective bar code on equipment as the equipment passed by the scanner. The information was processed in housed wayside circuits and the information was then sent via modem and telephone line to a central location. The Form 1 Award No. 31053
Carrier points out that the ACI no longer conforms to industry standards.
The Carrier asserts that the AEI was first installed 21 months before this claim arose at other locations without protest from the Organization. Communications employees represented by the IBEW, Carrier supervisors and manufacturers' technicians installed the wayside equipment. Contrarily, the organization submits that it filed claims at other locations, but held those claims in abeyance pending the outcome of this case.
The claim alleges that the work in dispute, that is, the installation, maintenance and testing of the trackside AEI devices, is exclusively reserved to the craft and class of signal employees per Rule 1. Rules 1(a) and 1(c) provide:
The Board determined that the International Brotherhood of Electrical Workers may have a third party interest in this case pursuant to Section 3 First (j) of the Railway Labor Act, as Form 1 Award No. 31053
amended. The Board notified the IBEW of its potential third party interest in correspondence dated January 9, 1992. The IBEW filed a third party Submission with the Board and appeared before the Board, as did representatives of the Petitioner and the Respondent.
The Organization argues that the AEI system performs exactly the same function as the former ACI system. The purpose of both systems is to identify locomotives, rail cars and other on track equipment. Although the new system utilizes radio frequency energy scanning in lieu of optical scanning, a change in the method of technology does not operate to remove the disputed work from the Scope Rule inasmuch as the Scope Rule expressly refers to automatic car identification systems. The organization submits that the IBEW cannot have any claim to the work because there is no reference to ACI, AEI or rolling stock identification systems in its Classification of Work Rule.
The Carrier raises two primary defenses. First, the Carrier asserts that AEI is distinct from ACI and the totally new AEI technology is not subject to the Scope Rule. The AEI technology was not even discovered, the carrier asserts, until long after the Scope Rule was negotiated. The Carrier further avers that there is absolutely no connection between ACI and AEI, since the former is obsolete and was totally scrapped. Second, the Carrier submits that AEI is not a signal system but rather, is a radio based system. The Carrier explained that AEI merely gathers information, a function unassociated with the safe and efficient movement of trains which is the traditional purpose of a signal system. The carrier alleged that AEI was a communication system as opposed to a signal system.
The IBEW essentially endorses the Carrier's position herein. The IBEW submitted statements from communication employees attesting that only employees represented by IBEW have been involved in the installation of AEI equipment at various locations on the property.
This Board finds that Rule 1(a) of the applicable Agreement expressly covers the work in dispute. Rule 1(a) plainly and unambiguously mentions "Automatic Car Identification Systems." The plural word "Systems" signifies that the negotiators of the scope rule contemplated that there might be more than one type of Automatic Car Identification process, system or technology.
While the Carrier attempts to characterize AEI as a separate system from ACI, the two systems perform identical functions. Both systems also used a wayside track device to identify passing equipment. When construing the Scope Rule, the purpose of the
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This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
The court simultaneously denied the IBEW's motion for judgment on the pleadings to set aside the Award and Norfolk and Western Railway Company's (NW) motion in its favor. Instead, the court remanded the Award to the Board to clarify its prior decision. More specifically, the court held that the Award failed to manifest that the Board reviewed, considered and interpreted the terms of the IBEW - NW collective bargaining Agreement. The court found that the Award was predicated entirely on an interpretation of the provisions of the BRS - NW collective bargaining Agreement. In sum, the court directed the Board to "mesh" the provisions of the IBEW - NW Agreement with the BRS - NW Agreement. See also Brotherhood of Locomotive Engineers v Atchison, Topeka A Santa Fe Railway Company, 768 F.2d 914 (7° Cir. 1985).
On remand, the Carrier, the Organization (BRS), and the IBEW filed Submissions with the Board: Page 2 Serial No. 373
The Organization petitions the Board to affirm its prior findings and to clarify that the Board gave appropriate consideration to the provisions of the IBEW - NW Agreement.
Although the Carrier vigorously disagrees with the result in Award 31053, it nonetheless submits that the Award is final and binding under the Railway Labor Act. This finality principle, the Carrier declares, is essential to maintaining stability and predictability in labor- management relations. Otherwise, the party that did not prevail before the Board would always seek relief in court which sabotages the parties' preferred method (arbitration) for resolving minor disputes under the Railway Labor Act.
The IBEW contends that Award 31053 is erroneous and thus, must be vacated. The IBEW's arguments are exactly the same as those raised in its original Submission albeit, with some embellishment. The IBEW further urges the Board to issue a ruling reversing its decision and hold that the disputed work belongs to the class and craft of communication employees represented by the IBEW.
Although Award 31053 did not articulate the Board's interpretation of the IBEW - NW Agreement with semantical precision, the Board considered and interpreted the IBEW - NW Agreement in harmony with Rules 1(a) and 1(b) of the BRS - NW Agreement. In the following paragraphs, the Board will quote the relevant provisions of the IBEW - NW Agreement and then show how those provisions were considered and interpreted in its original decision.
In addition, the IBEW relied on Supplement No. 11 of the IBEW - NW Agreement which provides:
Before addressing the IBEW - NW Agreement, the starting point for the Board's analysis was the Scope Rule in the BRS - NW Agreement. If the BRS Scope Rule did not cover the work in dispute, it would have been unnecessary for us to proceed with further contract interpretations. As stated in our original decision, Rule 1(a) of the BRS - NW Agreement expressly includes automatic car identification systems. This express contract clause vests the disputed work with the class and craft of signal employees unless there is a superseding provision in the IBEW Classification of WorkRule. To the contrary, the IBEW Classification of Work Rule does not even mention automatic car identification systems. The IBEW Classification of Work Rule broadly refers to"electrical means of communications" and "work generally recognized as Page 4 Serial No. 373
communications work." In essence, the IBEW Classification of Work Rule is general so that it operates only to protect work traditionally and historically performed by communication employees. To demonstrate that the disputed work fell within its Classification of Work Rule, the IBEW would have to proffer evidence of a past practice that communication employees performed the disputed work. As will be discussed in the ensuing paragraphs, the IBEW did not prove any such past practice. Therefore, the express allusion to the disputed work in the BRS Scope Rule is controlling.
As it did in its original presentation to the Board, the IBEW, on remand, stresses that communication employees performed the installation of AEI equipment on this property since the advent of AEI in approximately 1990. The IBEW argues that this assignment of work constitutes a past practice evincing that the Carrier and IBEW recognized that the disputed work was properly characterized as communication work within the ambit of the IBEW Classification of Work Rule. However, as the Board related in its original decision, the past practice actually supports the BRS' claim as opposed to the IBEW's position. The IBEW failed to proffer any evidence that communication employees performed the disputed work prior to 1990. The fact that they performed work subsequent to 1990 is merely the mis-assignment of work that was a continuing violation of the BRS - NW Agreement. On the other hand, the BRS came forward with evidence showing that signal employees had performed the disputed work under the former automatic car identification system. A mis-assignment of work is not a past practice. Rather, a past practice develops over along period of time. On this property, the Organization demonstrated that signal employees installed the former equipment identification systems and so, the past practice does not support the IBEW's position.
Becausethe IBEW did not have evidence of a true past practice and consequently, the disputed work did not fall within its Classification of Work Rule, the IBEW argued that the work was covered by Supplement No. I I of the IBEW - NW Agreement.
Supplement No. 11 of the IBEW - NW Agreement does refer to automatic car identification systems but, Supplement No. I I does not cover wayside devices. The Board applied the relevant provisions of Supplement No. 11 in harmony with the BRS Scope Rule. As specified in the second paragraph of Supplement No. 11, the IBEW and NW acknowledged that certain work along the right-of-way properly accrues to Page 5 Serial No. 373
employees in the signal craft. In the penultimate paragraph of our decision, the Board described the interface between wayside equipment and the communication system, that is, the external link. The Board drew the demarcation ofwork between signal employees and communication employees with regard to AEI. To accomplish this, the Board interpreted and applied the provisions of Supplement No. 11. Therefore, the original decision meshed the BRS - NW Scope Rule with the Classification of Work Rule and Supplement No. 11 of the IBEW - NW Agreement.
For the above stated reasons, the Board arms its original decision and Award in this case.
Referee John B. LaRocco who sat with the Division as a neutral member when Award 31053 was adopted, also participated with the Division in making this Interpretation.