The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employeewithin 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.
As Third Party in Interest, the International Association of Machinists and Aerospace Workers was advised of the pendency of this dispute and chose to file a Submission with the Board.
On August 26, 1997, the Organization filed a claim on behalf of Rank B Traveling Mechanics assigned to the Roadway Equipment Repair Shop Sub-department who were headquartered on former Great Northern Railway Company (GN) territory. It is the Organization's position that the Carrier violated Rule 1, Rule 78C and Rule 55M of the 1982 Labor Agreement when it assigned Machinist Traveling Mechanics represented by the International Association of Machinists and Aerospace Workers (IAM) to work with Tie Gang TP-03 beginning on June 30, 1997.
The Organization contends that these Machinist Mechanics are repairing roadway equipment which is work exclusively reserved to Traveling Mechanics. It asserts that on the former GN, BMWE - represented employees had the exclusive right to repair roadway equipment. The Organization requested that the Claimants be compensated for lost work opportunities until the Machinist Mechanics are removed from Tie Gang TP-03.
Tie Gang TP-03 was a Regional Gang operating on the Twin Cities Region when Machinist Mechanics were assigned to the gang. Therefore, the Carrier contends that the April 6, 1987 Memorandum of Agreement, the so-called "Twin Cities Agreement," was applicable to this Regional Gang. Under that Agreement, the Carrier maintains that it had the right to assign BMWE - represented Traveling Mechanics as well as LAM Machinists to the gang.
On September 4, 1996, the Organization filed a similar claim on behalf of Rank B Traveling Equipment Maintainers when the Carrier assigned IAM-represented Machinist Traveling Mechanics to Region Gang RP-17 that was operating on former GN territory. Again, the Carrier claimed that the Twin Cities Agreement allowed it to assign Machinist Traveling Mechanics to this gang. Form 1 Award No. 36590
On September 24, 1996, a similar claim was filed on behalf of Rank B Traveling Equipment Maintainers account the Carrier assigned LAM-represented Machinist Traveling Mechanics to Region Gang RP-17 in August and September 1996.
The three claims were combined into a single Submission that the Organization appealed to the Board. It is undisputed that on the dates of claim all three gangs operated on former GN territory on the erstwhile Twin Cities Region of the Burlington Northern Railroad Company (BN).
The central issue in this dispute is whether the Twin Cities Agreement was still in effect in 1996 and 1997 when these claims were filed. That Memorandum of Agreement was a tri-partite understanding between the IAM, the BMWE and the BN whose purpose was:
For the 1987 work season, three Machinist and five Maintenance of Way Traveling Mechanic positions were bulletined to workwith a Regional Gang on the Twin Cities Region. This 3:5 ratio was subject to adjustment ". . . based on work program requirements which may change during the course of the work season . . . ."
Neither the LAM, the BMWE nor the BN ever served written notice to cancel the Memorandum of Agreement. Form 1 Award No. 36590
The Organization avers that the Twin Cities Agreement was constructively terminated by the 1991 Agreement imposed on the BMWE and the Carrier, but this Board respectfully disagrees. The Organization's argument ignores the clear, precise and mandatory language of the Memorandum of Agreement which states that:
At no time subsequent to the 1991 Imposed Agreement did any party serve written notice on the other two parties to cancel the April 6, 1987 Memorandum of Agreement. It is noteworthy that the IAM was not a party to the 1991 Imposed Agreement. In 1997, the LAM advised the Carrier that it considered the Agreement to be in effect because none of the parties had canceled it in writing.
The Organization further argues that the Twin Cities Agreement is not in effect because there are no longer any Twin Cities Regional Gangs. In our view, the Organization has misapplied the Agreement. On its face, it applies to Regional Gangs on the Twin Cities Region, not to Twin Cities Regional Gangs. Thus, so long as Regional Gangs are operating on the Twin Cities Region the Carrier has the right to assign IAM-represented Machinists to these gangs.
The Organization also contends that the Twin Cities Agreement has been constructively canceled because the parties thereto never met in conference to discuss the work program for the upcoming work seasons as the Agreement mandates. There is no evidence that the Organization ever requested to meet in conference to discuss the work program for the upcoming season since the Memorandum of Agreement was signed on April 6, 1987. Moreover, failure to meet in conference to discuss the work program for the upcoming season would not vitiate the Agreement. As noted above, the Twin Cities Agreement can only be cancelled by one of the parties giving written notice of cancellation to the other parties to the Agreement and this was never done.
The Organization additionally asserts that Rule 78C of the 1982 Labor Agreement preserved the pre-existing rights of Traveling Maintainers and Maintainer Mechanics to repair roadway machine equipment and machinery.
There is no evidence in the record before the Board that the Maintenance of Way craft exclusively repaired roadway machine equipment and machinery prior to the 1982 Form 1 Award No. 36590
Agreement. Indeed, the 1987 Twin Cities Agreement was negotiated, in part, to end jurisdictional disputes between the IAM and the BMWE over the repair of roadway equipment assigned to Regional Gangs on the Twin Cities Region. And in any event, Third Division Award 36207 involving the same parties addressed this precise issue. The Board held that:
For all the foregoing reasons, the Board finds that when the instant claims were filed the April 6, 1987 Memorandum of Agreement was still in effect. That Agreement gave the Carrier the right to assign IAM-represented Machinist Traveling Mechanics to Regional Gangs operating on the Twin Cities Region. The claims are denied as a result.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.