Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39373
Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)
The Third Division consisted of the regular members and in addition Referee
Edwin FL Bena when award was rendered-
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Northeast Illinois Regional Commuter Rail
( Corporation (Metra)
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Northeast Illinois Regional Commuter
Rail Corp.:
Claim on behalf of T. II. Stone, G. M. Jones, D. P. Romaniszak and
C. J. Fatora, each for I18 hours at their overtime rate of pay and 56
hours at their straight time rate of pay, and for T. A. FulIgraf, T. D.
Humay, A. Deamantopulos and A. Smith, each for 50 hours at their
overtime rate of pay, account Carrier violated the current
Signalmen's Agreement, particularly the Scope Rule, when it used
non-covered employees to flag and protect road crossings at
Edgington Street and Rose Street on the Milwaukee District, from
May 24, 2001, until June 2, 2001, and deprived the Claimants of the
opportunity to perform this work. Carrier's File No. 11-3.3-336.
General Chairman's File No. 20-CM-01. BRS File Case No. 12495NIRC."
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form I Award No. 39373
Page 2 Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)
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.
The Carrier used non-covered employees (BMWE-represented employees) to
perform flagging functions on the dates and at the locations set forth in the claim.
The Scope Rule provides, in relevant part:
"This agreement covers the rate of pay, hours of service, and
working conditions of all Signal Department employees classified
herein engaged in the construction, repair, installation, inspection,
testing or maintenance, including such work performed in the
railroad's Signal Department Shops, of the following:
(a) . . . highway crossing protective devices, other than mechanically
connected or pneumatic highway crossing gates ....
(m) All other work generally recognized as Signal work."
The Scope Rule does not exclusively reserve flagging to covered employees.
Flagging is not even mentioned in the Scope Rule. Absent such a specific
reservation of work by the Scope Rule, the Organization must demonstrate a
system-wide pattern of exclusive performance of such work by covered employees.
That has not been done in this case. While covered employees can perform flagging
functions, the evidence also shows that in the past other individuals such as
Engineering Department Electricians, Maintenance of Way employees, Trainmen,
local police and the Carrier's police have performed flagging functions at grade
Form I Award No. 39373
Page 3 Docket No. SG-38862
08-3-NRAB-00003-050295
(05-3-295)
crossings on the Carrier's property. The claim therefore lacks merit and must be
denied. See Third Division Award 23537:
"Upon careful examination of the Scope Rule we do not find that the
work of flagging is exclusively reserved to the. Brotherhood of
Railroad Signalmen. In the absence of such clear and unambiguous
contract reservation, the Organization must demonstrate a system
wide pattern of exclusive performance to reserve such work to
Signalmen. To the contrary, evidence presented on the record
indicates that such diverse persons as Maintenance of Way
Employes and `local police' have been assigned the work of flagging
when automated signal devices have failed."
AWARD
Claim denied.
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 8th day of December 2008.