PUBLIC L.W BOARD-NO. 2206
Ah`ARD N0. 34
CASE N0. 30
PARTIES TO THE DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Burlington Northern, Inc.
STATE`c fNT
OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when permitting
Assistant B&B Supervisor R. L. Michelbrook to perform
Truck Driver work between Spokane and Wenatchee
February 22, 1978. (System File S-S-128C)
I(2) That
B&B
Truck Driver L. L. Fiechtner nrna be allowed
ten (10) hours pay for violation referred to in
Part (1) of this claim.
OPINION OF BOARD:
The facts surrounding the gravamen of this dispute are not contested.
Claimant is a Truck Driver holding seniority in the Bridge and Building Subdepartment, headquartered at Spokane, Washington. Assistant
B&B
Supervisor
R. ii. Michelbrook has responsibility for supervising crews spread over a
wide geographical area. Diichelbrook's company vehicle is a leased pickup
truck with WP of approximately 8,000 pounds. On February 22, 1978
Diichelbrook drove the truck from Spokane to Wenatchee, Washington, some 150
miles, to check on one of his crews. On the trip he hauled a quantity of
floor tiles from Spokane to Wenatchee and delivered it to the local
B&B
crew for use in reflooring the Yard office. On his return trip, Mi.chelbrook
hauled back to Spokane for storage some scaffolding which the Wenatchee
B&B crew had used on a painting project. Shortly thereafter, the Local
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Chairman at Spokane filed the present claim seeking ten (10) hours pay for
Claimant on the grounds that: "this work has been done in the past by
Mr. Fiechtner. and feels that this is not supervisor work".
The claim was appealed through all levels on the property without
resolution: In handling on the property and before this Board the question
has been narrowed. The Organization asserts that the work in question is
reserved to Agreement=covered Truck Drivers by Riles 1 and 55 P, and that
araguendo practice to the contrary, therefore, is not relevant. Carrier
maintains that there is no such express reservation in the cited Rules and
that accordingly the Organization must show reservation by exclusive systemwide performance which it has failed to do on this record.
The question whether these Scope and Classification of Work rules are
"general" or "specific" in their literal reservation of work to contractcovered employes is not a new or novel issue between these same parties under
the same contract language. A number of awards, with which we do not disagree, have held that Rule 5S was intended by the parties as a "reservation
of work rule". See Awards 3-19924; 3-20338; 3-20633; 3-21534.
In the present,case, however, such labels as "general" or "specific" are
not very helpful. If the Organization is to prevail in this claim that
Claimant's contractual rights were violated by the transfer of building
materials in a light pickup truck by a supervisor, it must show reservation
of that specific work to Claimant, either by clear and unambiguous contract
language or system-wide performance by B&B Truck Drivers .to the exclusion of
others as a matter of custom, practice or tradition.
At the first level of inquiry, we turn to Rule 55 P, upon which the
Organization primarily relies:
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3Y
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RULE 55. CLASSIFIC:ITIO% OF WOt%
P. Truck Driver.
An employee assigned to primary duties of
operating dump trucks, stake trucks and school
bus type busses, except tricks having a manufacturer gross vehicle weight of less than 16,000
lbs. or any vehicle of the pick-up, panel delivery
or special body type. The term special body
refers to trucks such as those used by welder
gangs and equipment maintainers with special bodies
designed to transport mechanics, tools, equipment
and supplies. laien vehicles equipped with snowplow blades are used for plowing snow or moving dirt,
the truck driver rate will apply in accordance with
Rule 44. Truck drivers will perform such other work
as may be assigned to him when not engaged in driving
a truck.
We find that the provision under examination does not expressly reserve the
specific work in question to B&B Truck Drivers like Claimant. The Rule does
purport to reserve to BAKE represented employes certain types of truck driving
work. This would be a much more viable claim if the supervisor had hauled
those building materials in a "dump truck, stake truck or school bus type
bus" with a GVIP of 16,000 pounds or more. But the vehicle at issue in this
case was a pickup truck and is as such expressly excepted from the coverage
of Rule 55 P. Where the specific rule does not reserve the work at issue,
then the Organization has the burden of proving such reservation by custom,
practice and tradition. No such showing is made on the record before us,
even though Carrier by assertions and documentary evidence put the Organization
to its proof on this issue. Accordingly, we must dismiss the claim for failure
of proof. See Awards 3-13347; 3-13937 and 3-19341.
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FIN'DIN'GS
Public Law Board No. 2306, upon the whole record and all of the evidence,
finds and holds as follows:
1. that the Carrier and Employe involved in this dispute are; respectively, Carrier and Emploje iithin the meaning of the Railway Labor Act;
Z. that the Board has jurisdiction over the dispute involved herein;
and
3. that the Agreement seas not violated.
AWARD
Claim dismissed.
Dana E. Eisc a
F. H. Funk, Employe ~~fem r ~1, Carrier Member
Date:
/9~fr~
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