Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32057
Docket No. SG-32191
97-3-94-3-630
The Third Division consisted of the regular members and in addition Referee
James E. Mason when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Kansas City Southern Railway Corporation
(KCS):
Claim on behalf of A.L. Orendorff, C.D. Francis, M.L. Loyd, and
C.J. Russell Jr. for payment of 10 hours each at their respective straight
time rates, account Carrier violated the current Signalmen's Agreement,
particularly the Scope Rule, when it utilized a contractor to perform the
covered work of installing signal equipment for use in the grade crossing
signal system at mile post 808.97 and denied the Claimants the opportunity
to perform this work. Carrier's File No. 013.31-472. General Chairman's
File No. 01-1171. BRS File Case No. 9559-KCS."
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 32057
Page 2 Docket No. SG-32191
97-3-94-3-630
Parties to said dispute were given due notice of hearing thereon.
The Claimants in this case were members of a Signal Gang headquartered at
Shreveport, Louisiana. The claim on their behalf alleges that Carrier violated the
negotiated Scope Rule when it purchased from a private vendor a pre-wired signal
bungalow and had it installed on Carrier's property in the territory of the Claimants.
The language of the Scope Rule here in dispute is as follows:
"RULE 1
SCOPE
This agreement governs the hours of service, rates of pay, and working
conditions of all employees in the Signal Department below the grade of
Supervisor (except clerical and engineering forces) performing the work
generally recognized as signal work; which work shall include the
construction, installation, maintenance, and repair of all signal equipment,
such as signals (automatic or otherwise), interlocking plants, highway
crossing protection devices, wayside train stop and control equipment, car
retarder systems, centralized traffic control systems, electric switca
beaters, detector equipment connected to or through signal systems,
including all their apparatus and appurtenances, signal shop work and all
other work generally recognized as signal work; and it shall include the
installation and replacement of solar power systems.
Work shall also include the installation, maintenance and repair of hot
box, dragging equipment, high wide, slide and other wayside detector
systems, and their appurtenances and appliances, the function of which is
to inspect passing trains for defects.
NOTE: The Carrier may, until January 1, 1993, utilize forces not
covered under the terms of this agreement to assist the employees in
upgrading and maintenance of the aforementioned detector systems.
During this period work done by outside forces to assist the employees with
the detector systems shall not be subject to dispute under the provisions of
Rule 48.
Form 1 Award No. 32057
Page 3 Docket No. SG-32191
97-3-94-3-630
Employees covered by this agreement will install and maintain all circuit
boards including future replacements which contain solid state design
consisting of components technologically equivalent and similar in concept
and design to those which are currently an integral part of the Carrier's
signal systems.
Employees covered by this agreement will be assigned the work
of
installation, testing, and inspecting
of
all equipment, including
technological change in Carrier's signal systems. Carrier will provide
necessary training for the employees assigned to such work.
NOTE: Employees assigned to positions described in the Classification
Rule
of
the Agreement will be trained and assigned, subject to qualification
rules in the Agreement, to install, maintain and/or repair the systems and
devices, including their appurtenances and appliances, set forth in the
Scope Rule."
During the handling
of
the case on the property, the Organization initially alleged
that the pre-wired bungalow was, in fact, installed on Carrier's property by employees
of
the vendor. Carrier's initial response to the Organization's claim alluded to the fact
that the employees
of
the vendor were represented by the same labor organization which
represents Carrier's Signal employees. Carrier later asserted on the property that the
actual installation
of
the pre-wired equipment on Carrier's property was, in fact,
performed by the Signal Gang. This initial disparity
of
material fact was subsequently
laid to rest when the Organization representative acknowledged that "relays were in
packing boxes and were installed onto relay racks by signal forces ...." The continuing
assertion by the Organization concerned itself with the pre-wiring of the signal
bungalow by the vendor's employees on the vendor's property. This pre-wiring work
by the vendor, the Organization says, was not for an off-the-shelf item, but rather was
for a special order item made to Carrier's particular specifications for installation at a
particular location on Carrier's property. Therefore, they say, such pre-wiring should
have been performed by Carrier's employees on Carrier's property. The Organization
cited Third Division Awards 30108 and 26452 in support of their position. The
Organization alleged that Signal Department employees have, in the past, constructed
similar signal devices on the property and could have done so in this instance.
Form i Award No.
32057
Page 4 Docket No.
SG-32191
97-3-94-3-630
The Carrier's position is basically threefold. It contends that the purchase of
pre-wired signal bungalows is not precluded by the negotiated Scope Rule, that such
purchases have been made on numerous occasions in the past, and that the actual
necessary installation of the equipment on Carrier's property was performed by its
Signal Department employees. Fortunately for Carrier, it abandoned its initial
ill-conceived position relative to the union representation of the vendor's employees
which had absolutely nothing to do with this dispute.
From the Board's review of the citations of authority advanced by the
Organization, we do not find either of the cited Awards to be of any assistance in this
situation. In the fast case, an outside contractor actually worked on Carrier's property
to bore a hole and install a pipe to carry a signal cable which work was properly held
to accrue to Signalmen. The other case involved a dispute between two different
Organizations over the performance of alleged work items on Carrier's property.
Neither of these situations is determinative in the instant dispute.
Here the Organization contends that none but Carrier's Signal employees may
be used to wire signal bungalows regardless of where such wiring work is performed.
The Board cannot a:tend the rights of the negotiated Scope Rule beyond the boundaries
of Carrier's territory. The Board does not find any prohibition in the Scope Rule
against Carrier purchasing pre-wired signal bungalows from private vendors. The
Board does agree that the installation of the pre-wired signal equipment
aft"
it arrives
on Carrier's property accrues to Signal Department employees. The fact that the
pre-wired equipment is site specific does not negate Carrier's right to purchase the
equipment from a private vendor.
This conclusion finds support in the decision reached by Third Division Award
5044 which held:
"We fail to see, however, that a purchase of new equipment in
whatever form it may exist, can constitute a farming out of work under the
Agreement for the fundamental reasons that it never had been under the
Agreement. That which was never within the scope of an agreement
cannot be farmed out.
This construction of the rule is consistent with past practice on this
Carrier. The record disclosed a number of instances where factory
Form 1 Award No. 32057
Page 5 Docket No. SG-32191
97-3-94-3-630
equipped instrument cases have been purchased without complaint on the
part of the Organization. It is a clear indication that the Organization
itself did not construe the Agreement to include the assembling and wiring
of instrument cases by a manufacturer as the work of signalmen.
The contentions advanced by the Organization amount to an
encroachment upon the prerogatives of management in one of its most
important functions. Management should not be limited in its managerial
prerogatives by placing a strained construction upon a rule that was never
mutually intended by the parties. Such limitations upon the primary
functions of management can be obtained only by negotiation, a function
in which this Board can take no part."
One of the more recent decisions in this same regard is found in Public Law
Board No. 5616, Award 18 which ruled:
"In the final analysis, what the Organization is contending is that Carrier
is in violation of the Scope Rule of the Agreement when it purchased
pre-wired bungalows from an outside vendor and installed them on
Company property. That argument is not persuasive. While the
Signalmen clearly, by Agreement, have all of the rights proposed by the
Organization, once equipment or supplies reach the property, the Scope
Rule cannot be a:tended to restrict Carrier's right to purchase equipment
from outside companies.
This issue has arisen many times on the past on this Railroad, as well as on
many others. Innumerable arbitration awards on the subject have been
rendered. The more reasoned of those awards concludes that Carriers do
have the right to purchase pre-wired signal devices from outside vendors.
If the parties had agreed at any time in the past that the purchase of
pre-wired signal equipment was a violation of the Scope Rule, their
understanding could have easily been so stated in the Agreement. The fact
that it is not so stated leads one to the conclusion that the parties never
intended that the Scope Rule would be extended to mean pre-wired
equipment could not be purchased."
Form 1 Award No. 32057
Page 6 Docket No. SG-32191
97-3-94-3-630
On the basis
of
the totality
of
precedent on this subject, the instant claim is denied
for absence
of
rule support.
AWARD
Claim denied.
ORDE
B
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 10th day
of
June 1997.