(2) As a consequence of the violation referred to in Part (1) above, Claimants T. McKay, K. Reed, M. Dector, E. White, J. Rodriguez, R. LaSorte, J. Tafelmeyer and P. Bentley shall now each be compensated for thirty two (32) hours at their respective straight time rates of pay and for nine (9) hours at their respective time and one-half rates of pay."
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.
In four letters dated July 26, 2002, the Organization filed four claims on behalf of "Montana District 200 track Subdepartment section forces" alleging that three welding crews were assigned to perform work belonging to the Track Subdepartment. Specifically, the Organization claimed that seven Welding Subdepartment employees were doing track gauging work and that "[a]t no time on the claimed dates, was a welding device or grinding device used." The Organization's four claims all continued:
The claims for four days in May 2002 were consolidated in the Carrier response dated December 18, 2002. The Carrier' stated, in pertinent part:
Accordingly, the burden is on the Organization to prove that the disputed work has traditionally, customarily and historically been performed by the Claimants or craft. Prior Awards indicate that "traditionally, customarily and historically" means that the work has been performed on a system-wide basis to the exclusion of others including outside contractors. (See Third Division Award 37618 and Awards cited therein.)
The Board carefully reviewed the record evidence. The Organization points to no specific language in the Agreement reserving the work at issue. Further, there are numerous Awards in support of the proposition that Rule 1 is a general Scope Rule and does not provide an exclusive grant of work to the employees discussed therein. The Organization must prove reservation of work by past performance. The claim made by the Organization in this matter is an intra-craft dispute. Accordingly, the Organization must meet a higher standard - the Organization must show that the Track Sub- Form I Award No. 40217
department employees have performed the work of gauging track on an exclusive basis. See, Third Division Award 37280 and the Awards cited therein.
Third Division Award 37280 is instructive. In that matter, both parties "provided statements to support their respective assertions of exclusive past performance and mixed-practice." Here, as in Award 37280, the Organization's statements from Track Subdepartment employees support the proposition that they have exclusively performed track gauging work in the past. The Carrier's statements support a contrary conclusion - that track gauging has been done by Steel Gangs for decades and at least one Relay Gang. There is conflicting evidence regarding the exclusivity of the disputed work.
Whether track gauging is performed exclusively by the Track Subdepartment is a material fact. Given the Board's appellate review authority, there is no method for resolving disputes of material fact when those material facts are at issue. Therefore, the Board has no choice but to deny the claims for failing to satisfy the burden of establishing the exclusive past performance of the track gauging.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 40217, DOCKET MW-38632
(Referee Clauss)
This dispute involved the Carrier's decision to assign the fundamental Track Sub-department maintenance work of gauging track to employes assigned and working in the Welding Sub-department. Rule 1B clearly establishes separate and distinct sub-departments within the Maintenance of Way and Structures Department, including the Track Sub-department and the Welding Sub-department. Rules 2, 5 and 55, clearly reserve work of the character involved here to Track Sub-department employes. Rule 2A provides that rights accruing to employes under their seniority entitle them to consideration for positions in accordance with their relative length of service with the Company. Rule 2B provides that seniority rights of all employes are confined to the sub-department in which employed, except as otherwise provided in this Agreement -Rule 5 specifies separate seniority and distinct rosters for Track Sub-department employes and Welding Sub-department employes. Rule 55-CLASSIFICATION OF WORK sets forth the various classifications within the Maintenance of Way and Structures Department, including foremen, track drivers and sectionmen. Rule 55Q stipulates that sectionmen are employes assigned to constructing, repairing and maintaining roadway and track and other work incident thereto. Rule 55K stipulates that a welder is an employe assigned to the operation of any welding device used in the performance of such work as repairing, tempering and cutting rails, frogs and switches, welding and cutting in connection with construction, maintenance and dismantling of bridges. buildings and other structures, and any other welding and cutting in the Maintenance of Way and Structures Department. As if the Agreement was not clear enough to establish that gauging track is reserved to the employes of the Track Sub-department, the Organization presented more than one hundred sixty-five (165) written statements into the record of this case. Each of those statements established that welding gangs have never customarily performed track gauging work. Our position in this regard was supported by Third Division Award 35961, which held:
A review of the above on-property award, involving the identical work at issue here, reveals that the Board completely overlooked this established precedent and instead attempt to plough new ground where there is no need. In fact, the Majority's findings are completely without any sense at all. Evidence of such is found within the award itself, wherein the Board held:
Based on this reasoning, the Board denied the Organization's claim. It has been said more than once that the precedential effect of an award is only as good as the reasoning found therein.
Because the Organization proved that such work was reserved to Track Subdepartment employes by Rule 55 and because the work was not `incidental' to work of the Welding Subdepartment, the Organization was not required to prove an Labor Member's Dissent