AWARD NO. 46

                              _. i

                              Case No. 46 (105) _,_,iii, . _ : ~,


                                                                Referee Fred Blackwell i

          Carrier Member: J. H. Burton Labor Member: W. E. LaRuel


          PARTIES TO DISPUTE:


                  BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES


                  VS.


                  CONSOLIDATED RAIL CORPORATION


          STATEMENT OF CLAIM:


          Claim of the Brotherhood (CR-2975) that:


              (a) The Carrier has violated the current Schedule Agreement, as amended, particularly the Scope Rule and Rule 1, when on December 22, 1986, the Carrier transferred and consolidated the work in the Grandview MW Material Yard, Columbus, Ohio, which was being performed by Maintenance of Way employees, to a new material yard facility at Fisher Road, and placed all such work under the scope of the BRAC-Conrail Agreement.


              (b) The Carrier shall now properly compensate two furloughed senior trackmen, one furloughed senior Class 1 machine operator, and one furloughed senior Class 2 machine operator, commencing December 22, 1986, eight hours each day, including over time, and continuing until this dispute is resolved as provided by Rule 26(f) of the current collective bargaining agreement.


              FINDINGS:


          Upon the whole record and all the evidence, after December 15, 1989. hearing in Washington, D. C., the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.


FRED BLACKWELL
 ATTORNEY AT W9

 19129 ROMAN WAY 1
 GNTHERSBURG.
 MARYLAND 20879
 1307l 971-5000
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)

                I

                OPINION

                THIRD PARTY DISPUTE

          This is a Third Party Dispute wherein after due notice of~ its Third Party interest in the dispute, the Transportation Commu-, nications International Union (TCU), fully participated in the


          proceeding by filing a submission on its position with the Board;

          I and participating in the December 15, 1989 oral argument on the case. By letter dated August 21, 1989 the BMWE submitted a rebuttal brief to the position stated in the TCU submission.

          In addition the Carrier submitted to the Board a December

          21, 1989 letter and attachment, and a March 19, 1990 letter and

          attachment. By letter dated January 11, 1990 the BMWE objected tol

          the position paper transmitted with the Carrier's December 21,

          1989 letter and requested that same not be considered by the Board

          or that, alternatively, the Board consider the post-hearing repre

          sentations made in the BMWE January 11, 1990 letter.

          NATURE OF DISPUTE AND PERTINENT FACTS

          Nature of Dispute

          This case arises from three (3) claims filed under date of February 13, 1987 on the basis of allegations that the Carrier violated the Scope Rule and Rule 1 of the parties' Schedule Agreement and Title VII, Section 706, of the 3R Actl as amended in 1981 and 1986, by its action of December 22, 1986, whereby the Carrier closed down the Grandview Material Yard at Columbus, Ohio, and


FRED BLACKWELL
 nnoPNEYATLAW 1 The Regional Railroad Reorganization Act of 1973.
 19129 fOMM IWY 2
 GAfTHERS8URD.
 VAAY[AND 20879
 13011 977·SOOD
                                                                I

          P. L. Board No. 3781 / Award No. 46 - Case 46 (105) transferred and consolidated the work of handling MW material and! supplies which was being performed at Grandview by Maintenance of~ Way Employees, to the newly established Material Distribution Cen-i ter at Fisher Road, Columbus, Ohio, and placed such work under the; I Scope of the TCU-Conrail Agreement. The remedy requested is that' the Carrier be required to restore four (4) Maintenance of Way! positions at the Grandview Yard that were abolished when that Yard was closed, two (2) trackmen and two machine operator positions i and to pay compensation for wage loss due to such violation to the!

          i four senior furloughed MW Employees in the classifications of the! abolished positions.

          The Carrier and the TCU submit that the Maintenance of i Way claims are not supported by the cited rules and statute, andl should be denied on this basis. Pertinent Facts

          Prior to December 1986, the Carrier maintained two Material Yards at which procurement and distribution of materials and supplies for the Columbus Division was conducted. One was the Grandview Yard, Columbus, Ohio, which was a Maintenance of Way Material Yard under the control of the Maintenance of Way Department. Maintenance of Way Employees exclusively performed the work relating to material and supplies handled into, stored, at, and distributed from the Grandview Yard.


                  The other material Yard was the 20th Street Material


FRED BLACKWELL Yard, Columbus, Ohio, which handled material for departments other

 ATTORNEY AT LAW

 19129 ROMAN WAY 3
 GAITNERSBURG,
 MARYLAND 20879
 I30119n.saoo
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)

                                                                i

          than the MW Department, e. g., the Signal Department, and at which: all work of handling material was performed exclusively by members. of the Clerical Craft.


                  The positions at the two (2) facilities, as of July 30, ;


          1986, were as follows (Carrier 3-19-90 letter):


          20th Street Grandview

          1 Foreman (TCIU) 1 Clerk (TCIU)

          1 Lead Clerk (TCIU) 1 Foreman (BMWE)

          5 Clerks (TCIU) 3 Truck Drivers (BMWE)

          13 Shipper Receivers (4 vacant)(TCIU) 2 Machine Operators (BMWE),

          3 Crane operators (TCIU) 1 Trackman (BMWE)

          23 Total 8 Total

          i

                  Both the Grandview Yard and the 20th Street Material Yard

                  i

were closed in 1986, and neither yard is now being used.
 On August 19, 1986 the Carrier opened a New Material Dis
 tribution Center at Fisher Road with the same clerical staffing as
 previously shown for the 20th Street Yard and with vacancies being
 filled on August 26.
 In December 1986, the Grandview Material Yard was closed.)
 One Clerical position, and one (or two) MW trackman and two MW
 Machine Operator positions were abolished at Grandview. One MW
 Truck Driver remained headquartered at Grandview. One MW Foreman
 and two MW Truck Driver positions were advertised and headquarter
 ed at the Fisher Road Facility to handle delivery of MW materials.
 This brought the total position count at Fisher Road to twenty-six
 (26) positions.
 FRED BUCKWELL Also in December 1986, the new Material Distribution Cen
 ATrORNEYATLM ter became fully operational under the direction and management of
 19129 ROMAN WAY 4
 GAnERSBURG,
 MARYUND 20879
 0011 977-5000
                                                                i


          P. L. Board No. 3781 / Award No. 46 - Case 46 (105) the Material and Purchasing Department. The Distribution center! serves as a central procurement and distribution facility for re-' ceiving, storing, and distributing all material and supplies for', all departments. The work of delivering MW material after its as-, signment to the account of the MW Department, is performed by MW' Employees assigned to three (3) MW positions established at thei


                                                                new Distribution Center, one Foreman and two (2) truck driver po-1 i sitions. All other work relating to handling material at the Dis-, i tribution Center at Fisher Road has been assigned exclusively tol TCU Employees. i

          It is the carrier's assignment of all work, excepting work of delivering MW material, at the new Fisher Road Distribution Center to TCU Employees which is challenged by the Maintenance of Way Employees in this case, and the BMWE says that work! previously performed at Grandview Yard by MW Traclanen and Machine Operators is being improperly performed at the Fisher Road Center by TCU Employees.

          The parties have discussed the claims but have not resolved same, and this case resulted.


                            POSITION 0_F THE PARTIES

          The BMWE asserts that the claims should be sustained in that work covered by the Maintenance of Way Scope Rule, which was previously performed exclusively by two MW Trackmen and two MW Machine operators at the Grandview Yard, is now being improperly


FRED BLACKWELL performed at the Fisher Road Warehouse by TCU Employees in viola
 ATTORNEY AT LAW

 19129 ROMAN WAY 5
 GArTHERSSURG.
 MARYLAND 20979
 130119n.sooo
 P. L. Board No. 3781 / Award No. 46 - Case 46 (105)
 ~tion of the scope Rule of the Maintenance of Way-Conrail Schedule
 Agreement, particularly the Scope's grandfather clause, and Title
 VII, Section 706, of the 3R Act as amended in 1981 and 1986; and P
 that the administrative change from assigning all incoming mater-1
 I
 ial at Grandview to the MW Department, to a mode of not assigning'
 (any incoming material at the newly established Material and Dis
 tribution Center on Fisher Road to the MW Department, is insuffi
 cient to support the Carrier's assignment of such work to the TCU;
 Employees at Fisher Road, because the handling of Maintenance ofd
 Way materials had been historically performed by past practice byl
 Maintenance of Way Employees at the Grandview Yard.
 The Carrier submits that the claims should be denied inj
 that the complained of work at the new Material Distribution Cen
 ter at Fisher Road is not secured to the Maintenance of Way Em
 ployees by the cited rules and statute; that the MW Employees have
 no demand right to perform work of handling material at the Dis
 tribution Center until such time as the involved material is as
 signed to the account of and becomes the property of the MW De
 partment; and that all work at the Material Distribution Center
 accruing to MW Employees by virtue of material having been assign
 ed to the account of the MW Department, has been assigned to three
 (3) newly established MW positions at the Center, one foreman and
 two (2) truck driver positions, and is being performed by MW Em
 ployees assigned to these positions.
 FRED BLACKWELL The Carrier asserts further that the grandfather clause

 ATTORNEY AT LAW

 19729 ROAM WAY 6
 GA[THERSBURG.
 MARYLAND 20879
 13011 977.5000
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)

          in the Scope Rule of the Maintenance of Way Agreement does not

          secure the disputed work to the Maintenance of Way Employees, be

          cause the protective text of the clause prohibits removal of work

          from Maintenance of Way Employees "...at the locations at which:

          such work was performed by past practice or agreement on the ef

          fective date of this Agreement.°; and that the phrase "at the lo

          cations" in this text refers to the material facility at Grandview'i

          Yard which no longer exists. I

          The Carrier also submits that the work of handling mater

          ial in other Distribution Centers on the system has historically

          i

          accrued solely to the Clerical Craft; and that the material hand-I

          i

          I

          ling work being performed by the TCU Employees at the New Distri

          bution Center on Fisher Road is covered by the Scope of the Con

          I

          rail-TCU Agreement and hence such work belongs to and is beingi


          properly performed by Employees represented by the TCU.


          i

The TCU submits that the claims should be denied in that)
 the material handling work of the kind performed by the TCU Em
 ployees at the 20th Street Material Yard, Columbus, Ohio, has been
 historically performed by TCU Employees throughout the Carrier's
 system; that the same work is now being performed by TCU Employees
 at the New Material Distribution Center at Fisher Road; and that
 such work is secured to TCU Employees by virtue of a 'specific
 "work and positions" Scope Rule in the TCU Schedule Agreement.
 QUESTION AT ISSUE
 FRED BLACKWELL The question in the case is whether the Carrier's actions

 ATTORNEY AT LAW
19129 ROMAN WAY 7
 GATTHERSBURG.
 MARYLAND 208;9
 (3011 911-5000
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)

i
 in respect to the disputed work being performed at the Material -
 i Distribution Center at Fisher Road is violative of the Scope Rule
 of the Maintenance of Way Agreement, particularly the grandfather'
 clause in the last paragraph of the Rule, and Title VII, Section
 706, of the 3R act, as amended in 1981 and 1986?
 FINDINGS AND DISCUSSION
 After due study of the record as a whole, including the.
 submissions presented by the three (3) parties to the dispute in,
 support of their positions in the case, the Board concludes thati
 I
 the herein claims are not supported by the cited rules and statute!
 and that in consequence, the claims must be denied.
 The provision in Title VII, Section 706, of the 3R Act asl
 amended in 1981 and 1986, which the BMWE contends is applicable toi
 the Carrier actions complained of in this case, reads in pertinent
 part as follows:
 i
 "With respect to any craft or class of employees not!
 covered by a collective bargaining agreement that pro
 vides for a process substantially equivalent to that pro
 vided for in this section, the Corporation shall have the
 right to assign, allocate, reassign, reallocate, and con
 solidate work formerly performed on the rail properties
 acquired pursuant to the provisions of this Act from a
 railroad in reorganization to any location, facility, or
 position on its system if it does not remove such work
 from coverage of a collective bargaining agreement and
 does not infringe upon the existing classification of
 work rights of any craft or class of employees at the lo
 FRED BLACKWELL cation or facility to which such work is assigned, allo
 AITOPNEYATLAW cated, reassigned, reallocated, or consolidated. Prior
 19129 ROMAN WAY 8
 GArrHEpseuAC.
 MARYLAND 20819
 13011 9775000
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)


                  to the exercise of authority under this subsection, the

                  Corporation shall negotiate an agreement with the representatives of the employees involved permitting such em-


                  ployees the right to follow their work."

          While it is doubtful that this Board has jurisdiction to; determine whether the cited statute has been violated by the Car


                                                                rier's actions, assuming jurisdiction arguendo, the Board's as-! i

                                                                sessment of this part of the record is that the record fails to ; i show that the Carrier's action of closing the Grandview Yard and; I the 20th Street Yard, and establishing a new Material Distributioni


                                                                Center at Fisher Road, was initiated and carried out by virtue of; i the authority conferred upon the Carrier by the quoted statute;] consequently, the provisions of the statute do not apply to the work being performed at the Fisher Road Material Distribution Center.

                                                                i


                  i

                  Also, the Carrier action of closing two (2) facilities atl

                  I

          Itwo different locations, and combining the activity and work formerly conducted thereat to a single new Material and Distribution Center at a new and different location, does not appear to be a consolidation within the meaning of that term in the statute. The positions at Grandview Yard and 20th Street Yard were not consolidated at the Fisher Road Center: the positions needed to operate Fisher Road were advertised for that location under and in accord with the provisions of the TCU and BMWE Agreements.

In view of this assessment the Board further finds that
 FRED BLACKWELL the Carrier was not bound by the statute's requirement to negoti-
 ATTORNEY AT LAW

19129 ROMAN WAY

GARHERSBURG.

MARYLAND 28879

(3011 977.5000

P. L. Board No. 3781 / Award No. 46 - Case 46 (105)
 ate an agreement with the Representatives of Employees involved in
 ~a transfer covered by the statute. Accordingly, the complained of
 faction by the Carrier is not shown by the record to have violated'
 the cited statute, and the challenge to the Carrier action on this
 ground is therefore rejected.
 The Board further concludes that the record does not es- ;
 tablish a violation by the Carrier of the BMWE Scope Rule, which,;
 in pertinent part, provides the following:
 "These rules shall be the agreement between Consoli
 dated Rail corporation (excluding Altoona Shops) and its;
 employees of the classifications herein set forth repre-i
 sented by the Brotherhood of Maintenance of Way Employes,I
 engaged in work generally recognized as Maintenance ofl
 Way work, such as, inspection, construction, repair and
 maintenance of water facilities, bridges, culverts,!
 buildings and other structures, tracks, fences and road
 bed, and work which, as of the effective date of this
 Agreement, was being performed by these employees, andl
 shall govern the rates of pay, rules and working condi
 tions of such employees.
 It is understood and agreed in the application of
 this Scope that any work which is being performed on the
 property of any former component railroad by employees
 other than employees covered by this Agreement may con
 tinue to be performed by such other employees at the lo
 cations at which such work was performed by past practice
 or agreement on the effective date of this Agreement; and
 it is also understood that work not covered by this
 FRED BLACKWELL Agreement which is being performed on the property of any
 ATTORNEY AT LAW former component railroad by employees covered by this
 19129 ROMAN YAY 10
 GAITHERSBURG
 MARYLAND 20879
 (9011 9n.sDW

i

n


                I P. L. Board No. 3781 j Award No. 46 - Case 46 (105)


                  Agreement will not be removed from such employees at thel locations at which such work was performed by past practice of agreement on the effective date of this Agreement."

          I 1

                  In deciding that the herein claims are not supported by;


                                                                I

          the confronting record, the Board recognized that from the percep-


          tion of the Maintenance of Way Employees who handled Maintenance] of Way material at the Grandview Yard, there is little or no dif-i i ference in the physical characteristics of the work performed at

          Grandview and the disputed work of handling material at the Fisher Road Distribution Center performed by the TCU Employees. Heavy material such as rails, crossties, and frogs, for example, when handled into and around the Distribution Center at Fisher Road, presumably entail the same kind of physical activity that occurred when such material was handled at the Grandview Yard.

          However, the physical characteristics of the disputed work, while a factor in Scope Rule problems, is not the controlling consideration in resolving disputes about whether work belongs under a particular craft's Scope Rule. Indeed, because the involved Scope Rules allow it, it is not unusual in the Railroad industry for different crafts to perform identical work.

          The controlling consideration in scope disputes is the language of the rules itself as construed and applied by Board authorities. In this dispute examination and analysis of the Scope Rule, combined with analysis of the facts, persuades the


FRED BLACKWELL Board that the BMWE Scope claims must be denied because they are
 ATTORNEY AT LAW

 19129 ROMAN WAY 11
 GArTHERSBURG.
 IAARYIPNG 20879
 13011 977.5000
 P. L. Board No. 3781 / Award No. 46 - Case 46 (105)
 invalid on at least two (2) grounds:
 (1) The grandfather clause in the fifth paragraph of the
 Scope Rule does not apply to the work, in dispute so as to secure
 such work exclusively to the Employees covered by the Maintenance
 of Way Agreement and Scope Rule.
 (2) The Carrier's decision to treat Maintenance of Wayi
 material coming into the Fisher Road Distribution Center the same;
 I I
 'as material for other departments, was a valid administrative act
 ion which the Carrier was empowered to take; and hence the Main-!
 tenance of Way Employees have no demand right to handle material
 i
 coming into the Distribution Center until it is assigned to the
 account of the Maintenance of Way Department.
 In regard to this first ground, there is no doubt that
 the work performed by the Maintenance of Way Employees of handling
 (Maintenance of Way material at the Grandview Yard, was covered by
 !the grandfather clause in the Maintenance of Way Scope Rule to an
 extent which precluded the removal of such work from Maintenance
 of Way Employees and unilaterally assigning it to another craft at
 Grandview. This is because the operative language in the grand
 father clause that provides that if "work not covered by this
 Agreement, was performed by Maintenance of Way Employees on the
 effective date of this Agreement", such work "will not be removed
 from such employees at the locations at which such work was per
 formed"
 FRED BLACKWELL The grandfather clause, if Grandview had remained open,
 ATTORNEY AT LAW
 19729 ROMAN wAr 12
 GAf1Hgq8URG.
 MARYLAND 20879
 (3011977-5000
          P. L. Board No. 3781 / Award No. 46 - Case 46 (105) would have interdicted the removal of material handling work at, Grandview and assigning it to Employees at Grandview not covered; by the BMWE Agreement. The phrase in the clause of "at the loca-!


          tions at which such work was performed" means Grandview Yard. The protection protection of the grandfather clause does not apply to work at lo

          cations other than the rule's specified location, and hence the

          clause does not apply to the work being performed at the Fisher

          Road Material Distribution Center, because this is a different

          location than the location referred to in the rule. In sum, the

          I grandfather clause in the fifth paragraph of BMWE Scope Rule applied to work performed at Grandview Material Yard, and since Grandview no longer exists, the grandfather clause has no application in this dispute.

                  As regards ground (2) of the Board decision to deny the

          f confronting claims, the Board notes that the text of the first paragraph of the Scope Rule contains verbiage which would cover material handling work that is in fact assigned to and performed by MW Employees at the Distribution Center at Fisher Road. But there is nothing in that verbiage that brings such work under the first paragraph of the Scope Rule, until its actual performance by Maintenance of Way Employees at the Fisher Road Distribution Center: and since material handling work at Fisher Road has-not been performed by Maintenance of Way Employees at the Fisher Road Facility, there is no basis for finding the work to be covered by

FRED BLACKWELL the BMWE Scope. In this regard the Board concurs with the Carrier

 ATTORNEY AT L11N
19129 ROMAN WAY 13
 GARHERSBURG.
 MARYLAND 20879
 1301) 9T7-MW
          P. L. Board No. 3781 / Award No. 46 - Case 46 (105) contention that the Employees of an entity have no claim to perform work for such entity until the subject matter which creates. and gives rise to the work, has been assigned to the account of and is in the possession of the entity. Award No. 12. Public LLaw, Board NQ. 2946 (10-11-82) and Award No. 28. Public Law Board No.' 2409 (03-30-81). Heavy material such as crossties, rails, andi frogs are readily identifiable as material which is not likely to; be used by any department other than the Maintenance of Way De-, i partment: however, this consideration does not eliminate the Car-I i rier's right to establish for efficiency reasons a procurement andl distribution system which confers work rights to Maintenance of~ Way Employees to handle this material only after it has been assigned on the books of the Material and Purchasing Department tol the account of the Maintenance of Way Department. In other words, until the heavy material is assigned, administratively, to the account of the Maintenance of Way Department, the work of handling the material does not accrue to the Maintenance of Way Employees.

          Furthermore, even though the administrative record keeping concerning the material is a paperwork transaction which is not visible to an individual observing the physical movement of the heavy material in and around the Fisher Road Distribution Center, this consideration has no impact on the Carrier's authority to modify and change its material handling system, and record keeping relative thereto, in order to improve efficiency where


FRED BLACKWELL such can be done within the permissible bounds of the applicable

 ATTORNEY AT LAW

 19129 fiOMVW WAY 14
 GMHE;SBURG.
 MARYLAND 20879
 130119n.saao
                                                                I


          P. L. Board No. 3781 / Award No. 46 - Case 46 (105) contract.


                  It therefore follows that an administrative change of

          !this kind in the procurement and distribution of materials and' supplies is not per se an improper action by the Carrier, and unless it is shown to be improper, it is an action which the Carrier, may take in the exercise of its Management rights prerogatives., The facts here indicate that the new Material Distribution Center'

                                                                i

          was opened to improve the efficiency of Carrier operations, and' there is no record evidence which indicates a basis for finding; that the Carrier made the administrative change for any improper; reason in regard to which craft performs the material handling!

                                                                i

          work.


                  The Board notes in conclusion that the TCU Employees per

          i formed essentially the same duties in respect to material handling at the 20th Street Yard, that they performed in and after August 1986 at the Material and Distribution Center at Fisher Road. The work of handling material at a central storehouse such as the Fisher Road facility, the record indicates, has always accrued to TCU Employees throughout the Carrier's system. It further appears that the work is covered by a specific "work and positions" clause in the Scope Rule in the TCU Schedule Agreement, which is absent from the BMWE Scope Rule. In addition the TCU Scope Rule makes express reference to job titles containing the phrase "Material Management" on a system wide basis, viz.:


FRED BLACKWELL "RULE 1- SCOPE -
 A70PNEY AT LAIN (b) . . . .
 19129 RDMW vaY 15
 GAITHEF58UHG,
 MARYLAND 20879
 13011977.5000
                P. L. Board No. 3781 / Award No. 46 - Case 46 (105)


                    Chauffeurs (Material Management...

                    Industrial Truck Drivers (Material Management...

                    Motor Truck Drivers (Material Management...

                    Tractor Operators and Tractor Operator Helpers


                      0

                      (Material Management..."


                                                                Language regarding job titles that expressly refer to "material i management" is not contained the BMWE Scope Rule. i In view of these and other considerations shown of record

                                                                i


          respecting the TCU position in this dispute, the Board concludes


          i that there is no basis for concluding that the Carrier has improperly assigned the herein disputed work to TCU Employees.

          In view of the foregoing, and for the reasons indicated the claim will be denied.2


          I AWARD:


                  Claim denied.


                  BY ORDER OF PUBLI LAW BOARD NO. 3781.

                                                                i


                        Fred Blackwell, Neutral Member


              FY. Burton, Carrier Member W. E. LaRue, Labor Member


          Executed on ~? -/3 - 9 / -


          CONRAIL\3781\46-105.623


2 This ruling shall not be a precedent in any other dispute FRED BLACKWELL except where the circumstances are the same as the particular ATTORNEY AT LAW circumstances of this case.

 19129 ROMAN WAY 1 6
 GAITHERSBURG.
 MARYLAND 20879 -

 001) 977-5000