Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 41013
Docket No. MW-38950
11-3-NRAB-00003-050386
The Third Division consisted of the regular members and in addition Referee
Gerald E. Wallin when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( HIT Rail Conference
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Southern
( Pacific Transportation Company [Western Lines)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned
electrical craft employes to perform Maintenance of Way
Water Service Sub-department work (service air conditioner)
in the El Paso Yard at El Paso, Texas on June 3, 2004, instead
of Water Service Sub-department employes F. Edgar and H.
Moreno (Carrier's File 1403654 SPW).
(2) As a consequence of the violation referred to in Part (1) above,
Claimants F. Edgar and H. Moreno shall now `... each be paid
their proportionate share, at the respective rate of their
assigned positions, for the twenty-four (24) straight time hours
worked by the Electricians to service the air conditioners
described herein. Payment shall be in addition to any
compensation they may have already received."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1
Page 2
Award No. 41013
Docket
No. MW-38950
11-3-NRAB-00003-050386
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.
instant dispute is a work jurisdiction claim. The International
Brotherhood of Electrical Workers (IBEW) was given ThirdParty notice and filed a
Submission to advance its position.
The instant claim arose after the Carrier assigned IBEW-represented
employees to perform some kind of servicing work on an air conditioner at the
Electrical & Water Service Shop located at the west end of the Campbell Street
Yard in El Paso,
Texas. The Claimants were furloughed employer at the time. The
claim only alleged that ". . . servicing of an air conditioner . . ." was performed; no
further details were provided. It also cited 11 specific Rules to have been allegedly
violated. The Carrier challenged all of the Organization's assertions made in the
claim and all appeals.
It is well settled that work jurisdiction claims of this kind between different
organizations require one of two specific types of evidence to successfully establish
that the disputed work has been exclusively reserved to the claiming organization.
The claiming organization must either demonstrate that its Agreement language,
usually the scope clause, explicitly reserves the disputed work to covered employees
or, in the alternative, the organization must demonstrate that the specific work has
been customarily, traditionally, and historically performed system-wide by covered
employees to the exclusion of other crafts.
See, for example, Third Division Award
21898, which denied a similar claim decades ago between these same parties.
examined the text of all 11 Rules cited by the
Organization. None of them explicitly reserves
".
servicing
of air
conditioners . . ." to BMWE-represented employees. Moreover, Rule 1, which is a
general type of scope rule, does not mention air conditioners anywhere in its text.
Form 1 Award No. 41013
Page 3 Docket No. MW-38950
11-3-NRAB-00003-050386
Because of the lack of any specific Agreement language that explicitly
reserves the work in question, the Board carefully examined the available evidence
of past performance. On the record before the Board, not only does the evidence
fail to specify exactly what work was done on the air conditioner in question, there is
no evidence of past performance anywhere else on the system covered by the
parties' Agreement. The El Paso Yard operations are located in only one of nine
seniority districts covering the overall system.
Given the state of the record described above, the Board must conclude that a
violation of the Agreement has not been proven. Accordingly, the claim must 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 20th day of July 2011.