Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35840
Docket No. MW-33775
01-3-97-3-248
The Third Division consisted of the regular members and in addition Referee Edwin
H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Indiana Harbor Belt Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it assigned Assistant
Supervisor A. R. Delatorre to inspect track and make track repairs at
Gibson Relay Yard, Kensington Yard, Cast Armour Yard and the
lake front on February 6, 7, 8, and 9, 1996, instead of assigning
Foreman A. Bowen to perform the scope covered work (Carrier's File
MW-96-012).
2. As a consequence of the aforesaid violation, Foreman A. Bowen shall
be allowed thirty-two (32) hours' pay at his straight time rate."
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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 35840
Page 2 Docket No. MW-33775
01-3-97-3-248
The Organization asserts that West District Assistant Supervisor A. R. Delatorre
inspected and made out yard reports for the Gibson Relay Yard, Kensington Yard, Cast
Armour Yard and the Lake Front on February 6 - 9, 1996 in violation of the Scope Rule
(covering "employees . . . engaged in work generally recognized as Maintenance of Way
work, such as inspection . . . of... tracks. . . .")
The record reveals that Supervisors have performed the disputed inspection work
for some time. In that regard, the Carrier asserts that " . . . Assistant Supervisors have
always performed inspections on the IHB . . . a precedent in excess of 20 years." And, even
according to covered employees, " . . . the last few years we have witnessed IHB attempting
to shift some of the inspections to Supervisors particularly the yard tracks FRA report" and
"[lor years we have raised the issue to the I.H.B. Management but they refuse to
acknowledge our complaints . . . ."
The Scope Rule is general. The evidence shows that Supervisors have performed the
disputed work in the past on a regular basis. Indeed, even according to the covered
employees, Supervisors have performed this work "for years." Therefore, the Board cannot
find that the Organization has established by probative evidence that employees covered
by the Agreement have in the past performed the disputed work to the exclusion of others.
See Third Division Award 21479.
This claim shall therefore be denied.
AWARD
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 18th day of December, 2001.