- - - - - - - - - - - - -
INTERNATIONAL BROTHERHOOD
ELECTRIC WORKERS
and
DULUTH, MISSABE, AND IRON RANGE
RAILWAY COMPANY
BROTHERHOOD OF RAILWAY., AIRLINE
aND STEAMSHIP CLERKS, FREIGHT
HANDLESS. EXPRESS AIM STATION
EMPLOYEES, Third Party at
Interest
For the IBEfd:
~~ r
P-j~
c
e;ci.TwW
NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 3858'
Members of Board
E. J. McDermott, Employe Member
Carl L. Signorelli, Carrier Member
Herbert L. Marx, Jr., Neutral Member
and Chairman .
Award Dated: January 31, 1977
Appearances:
Edward P. McEntee, International Representative
Dennis J. Anderson, General Chairman
For the Carrier:
P. C. Carter, Special Representative
Kenneth C. Sutton, Manager, Labor Relations
For BRAC:
J. C. Pletcher, Assistant to International President
John F. Grady, General Chairman
PUBLIC LAW BOARD N0.
1$53
FINDIUGS AND AWARD OF NEUTRAL MEMBER
This Special Board of Adjustment was convened to hear and resolve
a dispute between the International Brotherhood of Electrical workers ("IBEw") .
and the Duluth; Missabe and Iron Range Railway Company (the "Carrier"). In
an agreement effective December
3, 1976,
and amended as to Paragraph H on -
December
17, 1976
the IBEW and the Carrier determined that the Brotherhood of
Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station
Employes (i.BRAC")'Is a third party and has an interest in this dispute."
The Board consisted of E. J. McDermott, Employe Member; Carl L.
Signorelli, Carrier.Member; and Herbert L. Marx, Jr.-, Neutral Member and
Chairman designated by the other Members. Paragraph H, as amended, of the
Agreement to establish the Board calls for the neutral. member to "render a
decision or make such other. rulings and decisions necessary to carry
out
the
functions of the Board." The neutral member acknowledges the assistance of
the Employe and Carrier Representatives at the hearings, but, consistent with
the direction of the parties, the conclusions, findings and award below are those
of the neutral member alone, speaking for the Board..
An initial hearing in this matter was held in the offices.of the Carrier
in Duluth, Minnesota, on December
17, 1976,
at which time the IB5T, the Carrier,
and BRAC were afforded the opportunity to present statements and oral comments
on their position. It was agreed that rebuttal briefs would be prepared,
and these were received by mail by the Board in timely fashion. A second
hearing was held on January
14, 1977,
at the Carrier's offices, at which
time rebuttal evidence and argument were received. The parties having agreed
that their presentations were complete, the Board thereupon declared the
hearing closed.
_1_
The parties agreed that the issue to be resolved by the Board is as follows:
Do electricians represented by the International Brotherhood of
Electrical Workers, and employed by the Duluth, Missabe and Iron Range
Railway Company, have the exclusive right-to the electric bridge crane
operator assignments at Carrier's Steelton bulk materials handling
facility?
The Carrier has in effect a collective bargaining agreement dated October 1,
1959,
with System Federation No.
71,
Railway Employees` Department, AFL-CIO, of
which the International Brotherhood of Electrical Workers is a party. The Carrier -
also has in effect a collective bargaining agreement with the
Brotherhood of
Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station.
Employees "representing Ore Dock Employees", effective October 1,
1970.
The relevant portions of the Carrier-System Federation ITO. 71 Agreement
areas follows:
Scope
It is understood that this agreement shall apply to those employees who
perform the work specified in this agreement in the Maintenance of
Equipment Department; Marine; Communications Department; Electrical
and Signal Departments of the Carrier.
' Rule
93
Classification of Work
Electricians` work Shall consist of maintaining, repairing; rebuilding,
inspecting and installing the electric wiring of all generators,
switchboards, meters, motors, and controls, rheostats and ..
controls, motor generators, electric headlights and headlight
generator, electric.welding machines, storage batteries, axle
lighting equipment, and signal equipment, installing and
repairing all inside and outside telegraph and telephone equipment except when done by linemen, electric clocks and electric'.
-
lighting fixtures, winding armatures, fields, magnet coils, rotors,
transformers and starting compensators; 'inside and outside wiring
at shops, buildings, yards and on structures and all conduit work
_2- ,. .
in connection therewith, installing and repairing all telegraph,
telephone and electric pole lines and service wires either overhead or underground and all work in connection therewith except
when done by linemen; including steam and electric locomotives,
passenger trains, motor cars, electric.cable splicing; high tension
power house and substation operators, high tension linemen, electric
crane operators and all other work generally recognized as
electricians' work.
Supplement Agreement No..10
Electric crane operators working as of July 1,
1939,
will continue
as operators and at their present rate of pay. When any of the
present incumbents of these jobs are removed from this work,
the positions will then be filled from the Electrical Workers'
craft. .
Among the facilities operated by the Carrier asd those at Lakehead and
Steelton, for the purpose of storing and reclaiming taconite pellets
brought to and taken from these storage facilities. These are ore docks where
the work is performed predominantly but not exclusively by employes belonging to
BRAC. The Steelton location is a new one for the Carriers
commencing operation
in, late
1976.
It is the agreement *,betoreen the Carrier and BR AC to assign
12 operators to three overhead electric cranes at this new facility which gives
rise to the 1BER's claim iahich, put simply, is that its agreement with the Carrier
gives IBEW employes the exclusive right to operate these cranes. '
As will be shown in the
conclusion and
Award below, the Board does not
find that employes represented by the IBEHT have the exclusive right to, the oper
ation of these cranes at Steelton. Since this is also the position maintained
by the Carrier and BRAC, it is not necessary to comment in detail on the position -
as set-'~orth',_by_either= of these parties, but rather to deal with the various
arguments set forth on its own behalf by the IBEW.
l
a
Violation of Railoray Labor Act
The IBE4J contends that the Carrier has violated certain provisions of
the Railway Labor Act in its method of initial determination that the cranes
should be, operated by employes represented by BRAC. This Special Board
of Adjustment is not designed br empowered to consider violations.of
the Act, if any, and no further reference to this point need M. made...
Scope of IBEN Coverage
The Carrier points to the "Scope" of the Agreement covering System.
Federation No. 71, and notes that it is confined to the Electrical Depart-..
merit, as well as a number of other departments, but.not the Transportation
Department, charged with operation of the Steelton facility. The IBEW
finds the scope of its representation broader, pointing specifically to
the assignment of IBEW members to various facilities, including Steelton (see IBEW Exhibits K through Q in particular).
This dispute on this point does not get to the heart of the matter.
It is clear to the Board that Electricians are indeed assigned to various
facilities, including Steelton, in the performance of their principal duties
as.electxicians (viz., "maintaining, repairing, rebuilding, inspecting
and installing") It is equally clear, however, that, in such assignments
they remain under the direction of the Electrical Department. Note, for
example, that most of the notes of job openings in IBEW Exhibits K
through Q are headed "Electrical Department;' and.all are signed by R. R.
Borg, Electrical Foreman:. The presence of employees represented by the IBEW
at Steelton, working properly under the scope and classification ~of their
agreement, does not by itself extend the jurisdiction of the_IBEId to other
positions at Steelton where the claim of another union may be stronger.
_4_
Electrical Apprenticeship Training- Program
The IBEW points to the outline of its Electrical Apprenticeship
Training Progrnn, with particular reference to the following:
ORE DOCKS ELECTRICAL CREW .
fit. Storage facility electrical equipment and control,
repair, maintenance, knowledge of operation and
blueprint reading.
The fact that electricians in training become familiar with all
electrical equipment, wherever located -- and even if it. involves its-operation for training purposes -- is
a
thin straw to grasp for establishing
jurisdiction to the routine operation of the equipment involved.
Operation of Lakehead,Stor a Facilities Stacker
The IBEW made.the undisputed point that on occasion and on a repetitive
basis, electricians are assigned td move and place equipment known as
Stackers at the Lakehead storage :Cdr11ity. `this is firm evidence of the,
IBEW's rightful place as employees for certain duties at the storage
facilities but again it appears that these duties are closely related to the
special skills required of a craft electrician for this purpose. From this
it cannot be inferred that such assignment is any proof of exclusive jurisdiction over other ore storage facility equipment.
Supplement Agreement
No..0
The IBEW places strongest emphasis on the portion of its Agreement
with the Carrier which reads:
Supplement Agreement No, 10
Electric crane operators working as of July 1,
1939 will
continue as operators and at their present rate of pay.
T-Then any of the present incumbents of these jobs are
removed from this,work, the positions will then be .
filled from the Electrical Workers' Craft.
In the face of it, this clause would appear to grant.exclusive juxis-.
diction to the Electricians of the operation of electric cranes. But both
the context of the provision and the realities of the Carrier's widespread
and diverse operations before and after the institution of the provision
(originally in
1939)
must be considered. '
In the first place, the Agreement to which Supplemental Agreement No.
10 is attached covers six crafts (speciJ!ca11y not including BRAC), of which
the IBEW is one. It is not unusual for such agreements to specify which of
the affected crafts shall have exclusive rights to certain work. It cannot _,
be found to be binding on other unions not parties to_the agreement, unless -
of course such other agreements includes identical and complementary language
(which the BRAC agreement with the Carrier emphatically does not), Supplemental
Agreement No. 10 appears. to provide exclusive IBEt^T jurisdiction within the six
crafts under the applicable agreement, and not more.
Uncontested evidence was presented to the Board to show that openings . '
in. other electric crane operating jobs --'especially in bre storage facilities -
had been filled, without protest from the IBES-i, in the past. In addition, cranes .
are operated, evidence shows, by other crafts for other purpe5ses:-pgdar~agr~?-&ment separate.' from System Federation No. 71.
The Board finds that Supplemental Agreement No. 10 continues to refer to
specific electrical cranes in direct connection with the work classifications
covered by the Agreement in which it is contained. _.
6
. ti
The Nature and Purpose of the Work '
The Board comes now to a consideration of the central issue of the
dispute: What is the nature and purpose of the work being performed? The
Carrier has established a new ore storage and. reclamation facility at Steelton.
Storage and reclamation of ore, and.in the past other bulk materials such as
coal, has traditionally been the orork of employees_represented by BRAC in the
employ of this Carrier. Indeed, no question was raised as to this by the IBEId
at Steelton. Movement of such materials is. by a variety of methods,. but
traditionally has included hoisting apparatus to raise and lower such
material, the very function of the electric cranes here involved. To carve '
away such portion of the zro=k, traditionally and historically performed by
ore dock workers, would be to sever improperly an essential' portion of the
work covered
by
the BRAC agreement. The Steelton facility
'is
new, and the
cranes are new; the work involved is entirely unchanged. '
The background facts in-each case and under each collective bargain '
ing agreement always differ in some respects. Nevertheless the words of Referee
Carter in Award No. 1829,,Second Division, are applicable to this case, in
theory even if not in exact parallel as to all facts:
The operation of a crane is not the exclusive work of any craft
on this carrier. It ordinarily belongs to the craft whose
work it performs. It is the character of the work. performed
by the crane that ordinarily determines the craft from
which its
operator
will
be drawn. This is on the theory
that as the work performed belongs to a certain craft, 'the
methods employed to perform it, including the machinery
used, does not have the effect of removing it from the
agreement with the craft who hold rights to the, work.
CONCLUSION
The International Brotherhood of Electrical 47orkers has taken on an
awesome task to 'seek exclusive rights to operating electric cranes at
Steelton, for it must not only establish its rights to have its members,
work at Steelton in certain capacities (which it has done) but must also
show why it should do the work in question,to the entire exclusion of others.
As stated by Referee Twomey in Award
No.6867,
Second Division:
Since the petitioning Organization has not demonstrated
to this Board that the work in question is reserved to
the Organization exclusively by clear, definite and
unambiguous language of a rule, unencumbered
day
other ',
rules of the agreement, then in order for us to sustain
the instant claim the Organization must demonstrate that
the work has historically and exclusively been performed
by the . . craft system-wide. By system-wide we mean
that the burden of proof is on the Organization to' show .
exclusivity of practice system-wide.
The IBE1l has indeed shown that it has rights of the job of electric
crane operator under certain circumstances, even extending to the "inside"
crane at Steelton (which, however, is not used for the movement of bulk
material.) No showing was made of exclusive right to all crane work:
In assigning_work at the new Steelton facility, no showing eras made,
that the Carrier did so to the derogation of its existing and varying
agreements with different unions. It proceeded
in
the natural.order,
and not, this Board finds, breaking any new ground by a change in work
jurisdiction. ',
A W A R D
Electricians represented by the International Brotherhood of'
Electrical Workers, and employed by the Duluth, Missabe and Iron Range
Railway Company, do not have the exclusive right to the electric bridge
crane operator. assignments at Carrier`s Steelton bulk materials hand- - .
ling facility. .
Claim denied..
- Herbert L. Marx, Jr
Chairman and Neutral Member
Public Law Board. No.
1858
DATED: January 31,
1977
On this thirty-first day of January,
1977,
before me personally
came and appeared Herbert L. Marx, Jr., to me known and known to me to be
the individual described in and who executed the foregoing instrument, -
and he acknowledged to me that he executed the same.
_ 9 Notary E~b1~Stns,
of N'ew
York
No- 31-4511634
0ualified in New York County
mission
V_~Piceg
Mach
36;
DU
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS
and
DULUTH, MISSABE AND IRON RANGE
RAILWAY COMPANY
BROTHERHOOD OF RAILWAY, AIRLINE
AND STEAMSHIP CLERKS, FREIGHT
HANDLERS, EXPRESS AND STATION
EMPLOYEES, Third Party at
Interest
NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD N0. 1858
Members of Board .
E. J. McDermott, Employe Member
Carl L. Signorelli, Carrier Member
Herbert L. Marx, Jr,, Neutral Member
and Chairman
Award Date: Janaary 31, 1977
Interpretation Date: February 16, 1977
2 41977
LETCHE'
PUBLIC LAW BOARD N0. 1858
INTERPRETATION BY NEUTRAL MEMBER
By letter dated February 8, 1977, the Carrier has requested an
interpretation of the Award made by the neutral member of Public Law Board
No: 1858. The interpretation requested has to do with operation of the
"inside" crane at the Carrier's Steelton facility. The letter requesting
the interpretation is attached as Exhibit A, made a part of this supplementary
interpretation, is self-explanatory, and requires no further elaboration
herein.
Paragraph H of the agreement dated December 3, 1976, establishing the
special board of adjustment in this matter reads as follows:
The Board shall make findings and render a decision in
this dispute. Such findings and decision shall be in writing
and a copy shall be furnished the respective parties to the
dispute. The neutral member of the Board, consistent with
Paragraph "F", s all render a decision or .make such other r 1' s
an decisions necessary to carry out the functions of the Board.
n case a dispute arises involving an nterpretation of a decision
while the Board is in existence or upon recall within 30 days
thereafter, the Board, upon the request of either party, shall
interpret the decision in light of the dispute.
The Carrier is thus within its rights in unilaterally seeking an
interpretation of the decision.
The portion at issue of the Findings and Award of the Neutral Member
is on page 8 and reads as follows:
The ,IBEW has indeed shown that ft has rights to-the job of
. electric crane operator under certain circumstances, even extending
to the "inside" crane at Steel ton (which, however, is not used for
the movement of bulk material). No showing was made of exclusive
right to all crane work. In assigning work at the new Steelton
facility, no showing was made that the Carrier did so to the
derogation of its existing and varying agreements with different
unions. It proceeded in the natural order, and not, this Board
finds, breaking any new ground by a change in work jurisdiction..
- 1 -
The Carrier seeks an interpretation that the IBEW does not have
exclusive rights to operation of the "inside" crane at Steelton. The Board
infers from the Carrier's letter of February 8, 1977, that the IBEW interprets
the Findings and Award as recognizing its exclusive rights to the operation
of the "inside" crane.
Public Law Board No. 1858 dealt with the "electric bridge, crane
operator assignments at Carrier's Steelton bulk materials handling facilities",
and the dispute among the parties had to do exclusively with the three "outside"
electric cranes used in connection with pellet storage and reclamation. The
Award dealt with no other Carrier or IBEW claims in reference to any other crane.
The discussion on page 8 of the Findings and Award was utilized by the
Board solely to suppo~ the,IBEW position that it had established to the Board's
satisfaction that "under certain circumstances" it had rights to work assignments at Steelton. This had to do with the line of argument concerning the
Electrical Department and the Transportation Department and the IBEW's status
in these departments.
In reaching its conclusions concerning the "outside" cranes, the Board
noted the parties had no disagreement that employees represented by the IBEW
were operating the "inside" crane at Steelton (see IBEW Brief, p. 15; Carrier
Rebuttal Brief, pp. 10-11; BRAC Rebuttal Brief, p. 19; and IBEW Rebuttal Brief
to Carrier's Brief, p. 6).
Nothing in the Findings and Award sought to determine jurisdiction over
other than the three "outside" cranes, nor would it have been within the scope
of the Board's authority to do so. - Reference to the "inside" crane was limited,
i'
as noted above, to whether or not the IBEW had any rights at Steelton.'
Thus, in respone to the Carrier's interpretation request, nothing in
the Findings and Award is determinative of work assignment on the "inside"
crane. Whether the IBEW has exclusive rights, certain rights along with
other crafts, or no rights to the inside crane operation cannot be
found in the Findings and Award of Public Law Board No. 1858. It is a
separate question which must rely 'on other appropriate factors -- and
not the Findings and Award in this dispute-- for resolution.
Herbert L. Marx, Jr.
Chairman and Neutral Member
Public Law Board No. 1858
Dated: February 16, 1977
On this sixteenth day of February, 1977,,before me personally
came and appeared Herbert L. Marx, Jr., to me known and known to me to be
the individual described in and who executed the foregoing instrument,
and he acknowledged to the that he executed the same.
. - DOROTHY S. MARX
Notary Pt"-
'1i
`~"~' °s
New York
No. 3~-r.S". ; 934
Ou^!ifind in P:.-.v York County
Commission E.pires Ma: oh 30,1977
- 3 -
'
EXHIBIT "A"
AND
IRON
RANGE RAILWAY
COMPANY
MISSABE BUILDING -DULUTH, MINNESOTA 66802
February £i,
197- i
I Mr.
Herbert L. Marx, Jr.
20 Waterside Plaza
New York, N. Y. 10010
Dear Mr. Marx:
We have reviewed your findings and award in the dispute before Public
Law Board No.
1858
and have discussed the matter with the IBEW General
Chairman.
Our review and discussion has developed a controversy concerning
certain language in the conclusion set forth on page
8.
The Organization
has interpreted the language stating "The IBEW has indeed shown that it
has rights of the job of electric crane operator under certain circumstances,even extending to the 'inside' crane at Steelton" as granting
them the exclusive right to the operation of the "inside" crane.
It has been, and continues to be, our interpretation that they do
not have the exclusive right to operate the inside crane for the same
reasons they do not have the exclusive right to the operation of the
traveling bridge cranes as outlined in your findings.
At the present time we are commencing a repair program under which
B&B employees represented by the Brotherhood of Maintenance of Way Employees
will utilize the "inside" cranes to repair ore dock spouts. They have historically performed this work outside and have operated mobile cranes in
the performance of their maintenance function. We have planned to assign
B&B Employees to the operation of the "inside" crane at Steelton to perform crane operation which is incidental to their work. These plans conflict with the interpretation which-the IBEW is placing on the above auoted
language of the award.
In the interest of avoiding another three-party dispute, may Ireguest
that you clarify that portion of the award?
Yours very tru
C. L. Signore i
Director of Labor Relations