Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32058
Docket No. SG-32192
97-3-94-3-617
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 Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Atchison, Topeka and Santa Fe Railway
(ATSF):
Claim on behalf of D.J. Season for payment of 40 hours at the
straight time rate, account Carrier violated the current Signalmen's
Agreement, particularly Rules 1 and 2, when it used an outside contractor
to wire and install components for hot boa detector equipment at Mile Post
132.4 at Edelstein, Illinois, and deprived the Claimant of the opportunity
to perform this covered work. Carrier's File No. 94-14-4. General
Chairman's File No. 01-1187. BRS File Case No. 9522-ATSF."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and an 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.
Form 1 Award No.
32058
Page 2 Docket No.
SG-32192
97-3-94-3-617
The Claimant in this case was a regularly-assigned Signalman on Signal Gang #31
at Chillicothe, Illinois. The claim which was presented on his behalf and which formed
the basis of this dispute alleged a violation of Rules 1 and
2
of the negotiated agreement
because of the fact that Carrier purchased from a private vendor a pre-wired hot box
detector device. After the device as purchased from the private vendor was delivered
to Carrier's property, it was installed at the designated work site by Carrier's Signal
Department employees. There is no disagreement on these basic facts.
The Agreement rules here in dispute provide, in pertinent part, as follows:
"RULE1-SCOPE
(a) This Agreement governs the rates of pay, hours of service and
working conditions of employees in the Signal Department, including
foremen, who construct, install, maintain and/or repair signals,
interlocking plants, wayside automatic train control equipment, traffic
control systems (TCS), automatic highway crossing warning devices,
including all their appurtenances and appliances; also electrically
controlled car retarder devices, train order signals, electric signal and
switch lamps, switch heaters connected to or through signal systems, hot
box, high water, dragging equipment and slide detectors connected to or
through signal systems; static protection installations, wayside automatic
train stop (ATS), or perform any other work generally recognized as signal
work performed in the field or signal shops.
x
(d) The classifications as enumerated in Rule
2
include all the
employes of the Signal Department performing the work referred to under
the heading of `Scope.'
NOTE: Employes assigned to positions described in the
Classification fine 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, which are introduced in the future."
Form 1 Award No. 32058
Page 3 Docket No. SG-32192
97-3-94-3-617
"RULE 2 - CLASSIFICATION
(m) SIGNALMAN: A qualified employee assigned to a gang to
perform work pertaining to the construction and maintenance of signal
apparatus and appurtenances used in conjunction therewith. Such an
employee may be used to assist Signal Maintainers in the performance
of
their work. (A Signalman shall not be used to supplant a Signal
Maintainer.)"
The Board has examined and considered the arguments and citations advanced
by the parties. The only conclusion which can be reached in this dispute was actually
reached in 1950 when Referee Judge Edward F. Carter, sitting with the Third Division,
authored Award 5044. The conclusions reached in Third Division Award 5044 -
including the distinction which was made relative to Award 4713 which is again relied
upon the by Organization in this case - are not only equally applicable in this particular
case but also have been re-examined and reinforced by subsequent Awards of this
Division. For example, see Third Division Awards 7965, 11438, 12553, 18814, 19645,
20467, 28195, 28648 and 28879 among others. It is fitting here to re-state the principles
which have been with us since the adoption
of
Award 5044. There it was determined:
"The intent
of
the parties must be determined before the rule can be
correctly applied. The wiring of relay houses by a manufacturer is not
specifically spelled out as work within the Signalmen's Agreement. The
Organization points out that the electrical appliances used were stock
items that could be purchased and used indiscriminately for the purposes
for which made. It is the integration of the various appliances and devices
used, the method
of
wiring, and their regulation and adjustment within
their functional range which produces the result sought. It seems to us
that a Carrier, in the exercise
of
its managerial judgment could properly
decide to purchase the engineering skill
of
the sever of railroad equipment,
the benefits
of
its research and experience, the expertness
of
seller's
employes, and a guarantee that it would operate efficiently and
economically. Award 4712. To deprive a Carrier
of
this fundamental
right
of
management is not contemplated by the rule. On the other hand,
if Carrier chose to purchase the component parts of an intricate electrical
system and have it assembled on the property, for reasons of economy or
otherwise, it would clearly be the work of signalmen to perform in the
Form 1 Award No. 32058
Page 4 Docket No. SG-32192
97-3-94-3-617
absence of specific agreement to the contrary. The purchase of equipment
is a function of management. It may purchase by item or in quantity; it
may purchase with or without warranties as to its functional operation; it
may purchase by stock items or by having it built to order; it may
purchase equipment wholly or partially assembled; all without infringing
upon the work contracted to signalmen. When material or equipment is
purchased and delivered to the property of the Carrier, any construction,
installation, maintenance and repair growing out of its use on the property
of the Carrier within the scope of the generally recognized work of a craft
or of work specifically assigned to such craft, it is work which belongs to
the employes of that craft.
There is no contracting or farming out of work belonging to these
claimants in the present case. The equipment was never purchased and
delivered on the property of the Carrier for use until after the work
claimed had been performed at the factory. The rights of employes never
attached until the Carrier acquired possession of it. We quite agree that
if the equipment has been delivered to the Carrier in such a manner that
the rights of claimants under the scope rule attached, that a contracting of
the wiring and assembly of the unit would then be a farming out of work
belonging to these employes. 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
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. As we
have previously stated:
'The conduct
of
the parties to a contract is often just
as expressive
of
intention as the written word and where
uncertainty exists, the mutual interpretation given it by the
Form 1 Award No. 32058
Page 5 Docket No. SG-32192
97-3-94-3-617
parties as evidenced by their actions with reference thereto,
affords a safe guide in determining what the parties
themselves had in mind when the contract was made.'
Award 2436.
We conclude therefore that the contract as interpreted by the
parties on this Carrier adds support to the interpretation that we have
herein announced.
The Carrier cites Award 4662 in support of its position. In that
case, the Board said:
`This Board cannot agree with the contentions of the
Claimant. The purchase and delivery to the Carrier of any
manufactured piece of signal equipment or device cannot be
a violation of the scope rule. The rights of employes under
that rule are confined to work generally recognized as
telegraph, telephone and signal work in connection with the
installation and maintenance thereof, and such wiring as may
be necessary on the property of Carrier in the installation of
such devices. The employes performed all the work
necessary in installation and wiring of the equipment
involved here after its purchase from the manufacturer.'
The Organization argues that this award is distinguishable on the
facts and applicable rules. We think it is clearly in point on principle and
we adhere to what the Board there said.
The Organization argues just as persistently that Award 4713
controls the result in the present case. We think the same principle is
involved in that case as in Award 4662. There appears to be a divergence
of views in Awards 4662 and 4713. In the former it was held that the
purchase and delivery of any manufactured piece
of
signal equipment or
device cannot be a violation
of
the scope rule of the Signalmen's
Agreement In the latter case, the holding is directly to the contrary. The
writer of this Opinion is in accord with Award 4662. It is the correct
interpretation to be applied.
Form 1 Award No.
32058
Page 6 Docket No.
SG-32192
97-3-94-3-617
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.
For the reasons stated, we are
of
the opinion that there was no
violation
of
the Agreement and that a denial award is required."
One of the most recent decisions on this same issue is found in Public Law Board
No. 5616, Award 18 which held as follows:
"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 extended 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 bad 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 a:tended to mean pre-wired
equipment could not be purchased."
The Board in this case concurs with the plethora of decisions which have been
rendered on this issue. The claim as here presented is denied.
Form 1 Award No. 32058
Page 7 Docket No. SG-32192
97-3-94-3-617
AWARD
Claim denied.
QBDE
B
This Board, after consideration
of
the dispute identified above, hereby orders that
au award favorable to the Claimaut(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 10th day
of
June 1997.