Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31969
Docket No. SG-32226
97-3-95-3-33
The Third Division consisted
of
the regular members and in addition Referee
Edwin H. Bean when award was rendered.
(Brotherhood
of
Railroad Signalmen
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Chicago & North Western Transportation Co.
(CNW):
Claim on behalf of R. Stipek, P. D. Sclafani and C. E. Haynes for
payment of 12.5 hours each at the straight time rate, and on behalf of D.
P. Pantaleo Jr. for payment
of
4.5 hours at the straight time rate, account
Carrier violated the current Signalmen's Agreement, particularly the
Scope Rule, when it utilized other than employees covered by the
Signalmen's Agreement to perform the covered work of constructing the
foundation for supporting a signal case on November 23 and 24, 1993, at
Mile Post 43.43 on the Harvard Subdivision, and deprived the Claimants
of the opportunity to perform this work. Carrier's File No. 79-94-10.
General Chairman's File No. S-AV-196. BRS File Case No. 9545-CNW."
FINDINGS:
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.
Form I Award
No. 31969
Page
2
Docket
No. SG-32226
97-3-95-3-33
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
As Third Party in Interest, the Brotherhood of Maintenance of Way Employes
was advised of the pendency of this dispute, but it chose not to file a Submission with the
Board.
On November
23
and
24.
1993, .Maintenance of Way employees in the Carrier's
Structures Department constructed a berm and retaining wall on the Harvard
Subdivision at Mile Post 43.43. The Organization asserts that the construction was put
in place to hold the ground fill which supported a signal foundation and associated
appurtenances and was therefore work covered by the Organization's Agreement. The
Carrier asserts that the work completed by the Maintenance of Way employees was to
keep the ballast from sliding away from the track in the area
of
the switch blowers and
signal case and was properly assigned to the Maintenance
of
Way employees. Signal
Department employees previously installed the signal foundation directly supporting the
associated appurtenances (signal relay cases).
Citing its Scope Rule ("... construction ...
of
signals or signal systems with all
appurtenances on or along the railway tracks ... as follows: ... (i]nstalling foundations
directly supporting signals or associated appurtenances"), the Organization claims the
work. The Organization's Scope Rule, however, does not clearly support the
Organization's claim to assignment
of
this kind
of
construction. While it is certainly
arguable this kind
of
construction falls under the Organization's Scope Rule, there is no
specific mention
of
this particular construction in that Rule. To that extent, we do not
find the Organization's Scope Rule has specifically reserved the disputed construction
work to Signal employees.
In Public Law Board No.
2960,
Award 175, a similar dispute arose between the
Carrier and Maintenance
of
Way where the Signal employees were the beneficiary
of
the assigmnent
of
construction
of
"a wooden retaining wall to support the ground fill
upon which the supporting platform for the signal and battery box ... was to be
constructed ...." That Board denied the claim to the work by Maintenance
of Way.
Citing the Scope Rules
of
Maintenance
of
Way and the Organization, and further noting
Form I Xward No. 31969
Page 3 Docket No. SG-32226
97-3-95-3-33
that the Maintenance
of
Way Scope Rule was "less specific" than the Organization's
Scope Rule, that Board observed:
"This is a case where the language in the contracts of two different crafts
seems to grant rights to the same work to both groups."
We agree with that observation. Because the disputed work is not specifically
reserved by the Organization's Scope Rule to Signal employees and because the
Organization has not demonstrated the existence
of
exclusive history, custom or practice
whereby Signal employees have performed the work, we must deny the claim.
AWAR
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 6tb day of May 1997.