The fact situation in this case is reasonably clear and not really in dispute. The Claimant was regularly assigned as a Signal Maintainer whose territory included the work location here involved. On July 9, 1992, carrier received a report of an improper signal indication at a point known as W.B. Junction. This is a location at which carrier's line intersects with the Norfolk Southern property. A Signal Supervisor from each of the two Carriers came to the scene to determine whether or not the signal problem existed on their respective property. In the process of making this determination, Carrier's Supervisor "did do a test to verify the nature of the problem." After determining that the problem did, in fact, exist on Carrier's property, the Supervisor called a Signal Maintainer covered by the Scope Rule to perform the necessary corrective work.
The penalty claim which was initiated on behalf of the named Claimant requested payment of "a four hour call" alleging that the Supervisor had performed signal work which accrued exclusively to employees covered by the Signalmen's Scope Rule. The subject of the claim as listed with the Board asks for "four hours at the time and one-half rate." However, the Organization's Submission to the Board requests compensation of "four hours at the straight-time rate."
The Scope Rule which is in question in this dispute reads as follows:
It is the position of the Organization that the inspecting and testing work performed by the Supervisor constituted work which was exclusively reserved to employees covered by the aforementioned Scope Rule. It contended that the sole purpose for the tests and inspection was to effect the repair and maintenance of the signal system. It cited with favor Third Division Awards 20172 and 20510 in support of its position. The Organization candidly acknowledged that "...supervisors are permitted to perform certain tests in connection with signal system malfunctions, but it is clear that the tests and inspection performed in this case went far beyond the line between supervisory inspection and the work covered by the Agreement."
The Carrier's argument was basically twofold. Initially, carrier argued that "testing" is not a work item which is specifically mentioned in the Signalmen's Scope Rule. Therefore, it contended, testing and inspecting of the signal equipment is not exclusively reserved to Signalmen. It insisted that the complained of work was "incidental to and an integral part of the Signal Supervisor's duties." Carrier cited Third Division Awards 4828 and 20780 in support of its contention on this issue. Carrier contended that the work necessary to correct the malfunction was, in fact, performed by an Agreement-covered Signal Maintainer.
Carrier's secondary argument, which was advanced for the first time before this Board, was that, in any event, the Claimant in this dispute could not have performed the complained of work because of the Federal Hours of Service Act.
The Board will first address Carrier's secondary argument relative to the availability of the Claimant. At no time during the on-property handling of this dispute was such a position taken by Carrier. There is a casual mention in the case record of Claimant allegedly indicating that he had been on duty "eleven hours" during a conversation between him and the Supervisor. However, that statement was never addressed by Carrier as a reason for its denial of the claim during any of the subsequent on-property handling of the dispute. All parties know, or should know, that substantive arguments advanced for the first time before this Board will not be given consideration. So too in this case on this issue.
The Board's examination of the factual situation as detailed in the case record leads to the conclusion that the Scope Rule here in question does not, by its clear language, reserve exclusively to Signalmen all of the work of testing and inspecting to determine the cause of signal malfunctions. All supervisory officials are required from time to time to make inspections and perform tests in the normal performance of their duties. Form 1 Award No. 31495
The organization candidly concedes this point in its presentation of this case. Even Award 20510 which was cited by the Organization acknowledged as follows:
On the basis of the fact situation as it is presented to the Board in this case, that is what occurred here. There was no first hand knowledge available on which a determination could have been made to call a Signal Maintainer from this Carrier's property until after the Supervisor had determined that the malfunction did, in fact, exist on this Carrier's property. When that determination was made, a Signal Maintainer covered by the Scope Rule was called and, in fact, performed the necessary maintenance work.
The Board cannot conclude from this case record that the Signal Supervisor crossed over the line which exists and which must be maintained between Supervisors and Agreement-covered employees. Accordingly, on the basis of the case record as it exists here, the claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.