The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended; this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon. Since the Statement of Claim suggested that the Sheet Metal Workers International Association (the SMWIA) might have a third party in interest in the claim, the SMWIA was duly notified of the dispute and provided the opportunity to file a written response submission and to attend the Board hearings. The SMWIA filed a submission, and appeared for the Board's oral hearing.
This claim is based on the contention of the Brotherhood of Maintenance of Way Employes (the Organization or the BMWE) that the Carrier violated the terms of its collectively bargained Rules Agreement in directing two Sheet Metal Workers, covered by the Carrier/SMWIA Agreement, perform office remodeling and construction work in the Electric Shop at Waterville, Maine. The work at issue, as set forth in the claim, consisted of erecting new walls, installing sheet rock, taping, sanding, painting, and varnishing floors.
The Organization maintains that the work at issue has customarily and historically been performed by Bridge & Building Mechanics, and that in having such work performed by
The Carrier does not dispute that Rule 5.2 of the BMWE Agreement, supra, describes the primary work functions of B&B Mechanics. However, the Carrier says, while "it is true that constructing and renovating offices is one of the primary functions of B&B Mechanics, it [Rule 5.2] does not reserve this work for B&B Mechanics to the exclusion of all other crafts."
It is the position of the SMWIA, as with the Carrier, that the work performed and at issue is work of a nature within the boundaries of Rule 34, the Incidental Work Rule, and constituted a type of work that the SMWIA claims Pipe Fitters (Sheet Metal Workers) have, in fact, performed in the past.
In the opinion of the Board, there is no question that Rule 34 permits the performance of incidental work by and between employees, or elements of work that has historically by rule or practice been generally recognized or claimed as being reserved to a particular craft of class of employee. At the same time it is obvious that the impact of Rule 34 may not be held to extend to work covered by the scope of an agreement where there is no like, or reciprocal, rule. Thus, the provisions of Rule 34 may not be held to extend to the performance of work that has by rule or historical past practice been reserved to employees in which agreement language such as that contained in Rule 34 is not present.
In this latter regard, it is evident that the Carrier/BMWE Agreement does not include a rule that reads the same as Rule 34 in the shop craft agreements. The Carrier/BMWE Agreement contains an intra-craft work activities rule rather than inter-craft work rule, i.e., Article 2.1, Intra-Craft Jurisdiction. This Carrier/BMWE rule contains language that is distinctly separate and apart from that contained in Article 34 of the shop craft agreements. This more restrictive Article 2.1 reads:
Moreover, as concerns Carrier/SMWIA cited Rule 34, even assuming, arguendo, it had application to the dispute at issue, which it does not, it would have to be recognized, as the BMWE argues, that construction of an office in a building is not incidental work, or work that could be readily be considered as incidental to "a clean, safe and operational facility." It also seems to the Board that the fact that the Carrier assigned Sheet Metal Workers to work on construction of the office no more than four-hours in each work day, or the time limit proscribed by Rule 34, that this circumstance suggests that the Carrier recognized that the work in question was not incidental and thus did not, in fact, come within the scope of its Agreement with employees who are represented by the SMWIA.
The Board also finds it significant that although both the Carrier and the SMWIA urge that past practice supports their respective and joint positions, that no facts of record are shown to justify such a contention. This absence of documentation being contrary to numerous unrebutted statements, albeit of like form and substance, provided by the BMWE to the Carrier during the handling of the claim on the property that the work of remodeling and construction of offices on the property has traditionally and historically been work assigned to B&B Mechanics.
Clearly, to sanction the Carrier contention that Rule 34 gives it absolute and unilateral discretion to cross craft and class lines for the performance of incidental work, despite the absence of alike rule being contained in the Carrier/BMWE Agreement, would require that the Board write a new rule into the Carrier/BMWE Agreement, or basically engage in an action that the parties have already decreed is not within the realm of Board authority.
In the light of the above considerations and overall study of the record the Board finds that the position of the Organization must be sustained.