PUBLIC LAW BOARD NO. 3863
PARTIES TO DISPUTE: BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK)
STATEMENT OF
EACH CLAIM: "Claim is hereby filed for all time made by: The work
is being performed by Gang Nos. 5792 and 5142 of the
Track Department working at South Hampton St. Yard.
Boston, Mass. on 3/25/83 3/26/83 3/27/83 3/28/83
3/29/83 when they, in violation of Article No. 1 of
the current effective Agreement, performed the
following work: Installing crossings at grade
(3/25/83 Fore 8 bra and 4 man) (3/26/83 Fore and
4 man 8 hrs) (3/27/83 Fore 8 hrs and 4 men) (3/28/83
For& and 4 men 8 hrs) (3/29/83 Fore and 4 men 8 hrs)"
THE FACTS= On five days in March 1983, Track Sub-department forces,
using prefabricated plastic panels, installed grade crossings in the Carrier's
South Hampton Street Yard, Boston. Massachusetts.
Seven Bridge and Building Sub-department (BS6B)_,Qmployees
who were working at the time with a B&B Composite Gang filed identical
indi
vidual claims, alleging vioaation of Article I in the
assignment of
the work
and seeking compensation for the "time made" by the Track employees. The
claims were decided separately on the property. In oral argument before
this Boardrlthe seven claims were treated jointly as 1 single dispute. Since
all claims arose from the- same facts and present identical issues, they have
been consolidated for purposes of disposition by this Board.
The Organization argues that the work in dispute
belongs
to the B&B employees. The argument rests on the following Carpenter position
description in the work Classification Rule, Article I of the basic Agreement:
"4. Carpenter - Construction of
repairs to or dismantling
of structures made of wood
or wood substitutes."
_?_
Cases Nos. 2 - 8
PLB-3863
Awards Nos. 2 '- 8
The work in dispute, the Brotherhood says, fell within
the description by reason of the nature of the construction and the degree
of expertise needed to handle the particular material and equipment required
for the tasks involved.
The Carrier urges dismissal of the claims for want of
merit. In support, it argues that.:... The claimants and the Brotherhood
have failed to submit any proof whatever to support the bare allegation of
contract violation. In any event, no violation of Article I occurred, because
no exclusive right to the installation work accrued to B&B employees either
from the fact of work listing under the Carpenter position classification or
from the kinds of'tools used to do the work. Traditionally, this type of
essentially non-journayaaxr work has been. performed by various classifications
covered under the Scope Rule. In short, the work does not belong exclusively
to any one employee group; the Brotherhood has not shown otherwise. Furthermore, even if the claims were sustained on the merits, the monetary relief
sought could not properly be granted.
FINDINGS: The Arbitrator finds on the whole record and all the evi
dence that the carrier and each employee involved in this dispute are carrier
and Employee within the meaning of the. Railway Labor Act, as amended, and that
the Board has jurisdiction over this dispute.
The Board further finds and concludes as follows on the
record as a whole.
By asserting an exclusive right to the_work for BIB employees,
the Brotherhood has assumed the heavy burden of supporting its claim by substantial evidence of a significantly material nature. Thus it must present a
reasonable and persuasive interpretation in its favor of the Work Classification
Rule. This it would have to do by showing clear support for the exclusivity
claim in the language of the rule, or in the way the rule has been traditionally
applied system-wide over the years. We cannot possibly find on this record
that the Brotherhood has met that burden.
Cases Nos. 2 - 8
-3-
PLB-3863 -
Awards Nos. 2 - 8
The Brotherhood's interpretation of Article I has no
acceptable support. The description of primary duties for purposes of
position classification cannot properly be interpreted as a grant of an
occlusive right to perform the work. This is the general view as to railroad agreements. More importantly, the Scope Rule of the applicable Agreement plainly expresses the parties' intention not to give such meaning to
any classification. No exception is made for this particular position.
This should be dispositive of the claims.
Even without regard to the Scope Rule, the Brotherhood
has provided no persuasive basis for holding that this particular work was
reserved exclusively to the B&B employees. It has not shown, by direct
evidence of its own or by convincing rebuttal of the Carrier's assertions,
that the particular type of work in question actually fell within the primary
duties described for the Carpenter position. The use of tools normally associated with Carpenter duties is not sufficient, either in itself or against
the Carrier's unrebutted explanation, to establish the merits of the claims.
Finally, the Brotherhood has not produced any direct or rebuttal evidence of
a traditional practice in favor of its contention.
The claim will be denied.
AWARD: The claims in Cases
tbs.
2 - 8 are denied.
Neutral Member and Chairman
_~G
-5re
Carrier Member Brotherhood
Member
i,& YZ
L
November 25, 1985