. BEFORE
PUBLIC LAW BOARD NO. 954
AWARD NO. 1
(Case No. 16955)
BROTHERHOOD OF RAILWAY, AIRLINE
AND STEAMSHIP CLERICS, FREIGHT
HANDLER, EXPRESS AND STATION EMPLOYES
' v.
THE LONG ISLAND RAIL ROAD COMPANY
STATEMENT OF CLAIM
:
1. The Carrier violated the established practice, understanding
and provisions of the Clerk's
Agreement, particularly,
the Scope Rule,
Rules 4-A-7, 9-A-1, 9-A-2, among others, Memorandum of Understanding
No. 2 and Agreement No. 47, when it assigned, required or permitted
established Chauffeur work to be performed by a laborer (E. F lynn) who
' has no seniority rights and is not covered by the Scope of the Clerk's
Agreement.
2. This work shall be returned to the Employes covered by the
Scope of the Clerk's Agreement upon whose behalf the Agreement was made
in accordance with the provisions of the Railway Labor Act to perform this
work.
' 3. The Carrier shall pay Chauffeur Buckley for each Monday of
every week, effective June 13, 1966, and Chauffeur L. Walker for each
Wednesday of
every week,
effective June 15, 1966, eight hours pay at the
rate of time and one half and for each day
thereafter this
chauffeuring work
is performed by other than employes covered by the Clerks' Agrecn,.ent
. until such time as the violations are corrected.
. PL
<r3
95y
4. The Carrier shall pay Chauffeur E. Blank for each Tuesday,
Thursday and Friday of each week, effective June 14, 1966, four hours,
overtime at the rate of time and one half and for each day thereafter this
carting and chauffeuring work is performed by other than employes
covered by the Clerks' Agreement and until such time as the violations
are corrected.
5. The Carrier further violated Rule 4-D-1 when it failed to
comply with its own provision, reason and understanding (letter dated
October 26, 1966) for extending the time limit of the claim.
JURISDICTION
This Board (Public Law Board No. 954) was duly established by
Agreement of the parties, executed April 25, 1972, as provided for in
Public Law 89-456 (80 Stat. 208) and in compliance with Regulations
promulgated by the National Mediation Board by authority of said statute
(F. R. Doc. 66-1245 1). The aforementioned Agreement is incorporated
herein by reference thereto.
The "AWARD NO, -' in the caption of this and all subsequent
cases within the jurisdiction of this Board represents the order of issuance
S,, of the AWARD. The "Case No. " which appears in parenthesis under
the "AWARD NO.-'identifies the case as listed in Attachment "A" of
the April 25, 1972 Agreement of the parties.
The Board in its consideration of each dispute is by statute required
to confine itself to issues timely raised by either party in the course of
usual handling of disputes on the property. Railway Labor ACT (RLA)
Sec. 3, First (1). As to issues which satisfy that test the parties in
paragraph (9) of this Agreement establishing the Board, have stipulated
that each of them may, either orally or in writing, present evidence that
-2-
is material and relevant to the issues timely raised on the property; and,
the Board is authorized "to require the production of such additional
evidence ... as it may desire from either party."
The parties have waived the time limitation prescribed in paragraph
(10) of their April 25, 1972 Agreement within which the Board was to
"render an award within thirty (30) days after the close of hearing of each
claim."
OPIN
IO,\T OF BOARD:
This dispute, on April 10, 1967, was referred by petition of BRAG
to the Third Division, National Railroad Adjustment Board as provided for
in RLA, Sec. 3, First (i). Each party filed with the Division a Submission
and a Rebuttal to the Submission of the other. In its Submission, Carrier
alleged that International Brotherhood of Electrical Workers (IBEW) had a
third party interest in the dispute; and, the Division was without jurisdic
tion to consider the dispute on its merits in the absence of notices to IBEPI
with right to intervene. The Division, under date of August 6, 1971, served
notice on IBE\7 of the pending dispute and informed it of its statutory right
to: (1) file a written Submission; and, (2) be heard at an oral hearing set
.sue for September 14, 1971. IBEPI filed a Submission on September 14, 1971.
Neither Carrier nor BRAG entered an appearance at the oral hearing. On
September 23, 1971, the Executive Secretary of the Adjustment Board
I
forwarded a copy of the IBEW Submission to Carrier and BRAG and
. i
. informed them that each would be allowed until October 26, 1971, to sup
plement its original Submission to embody the involvement of IBEZY. Each
did. Thereafter, on May 11, 1972, Carrier and BRAC, jointly, exercised
1
the statutory right (RLA, Sec. 3, Second) to withdraw the instant dispute
from the Third Division and four others (Dockets CL 1Si27, 18375, P'.323
' I
_3_
PLG
C15t/
and 18739) for referral to this Public Law Board -- all of which disputes
are docketed with this Board.
On June 16, 1972, this Board served notice on 1BEW that: (1) the
Board would hold hearing on June 28, 1972; and (2) it "will be allowed to
participate in said hearing in accordance with the directives of the National
Railroad Adjustment Board." IBEW did not appear at the hearing.
We find that LEEW, as an alleged third party in interest, was full,
afforded due process as prescribed in
T. -C. E. U. v. Union Pacific R. Co. ,
385 U. S. 157 (1966).
FACTS
The Claim was filed with Carrier's Chief Mechanical Officer on
August 8, 1966, with statement of "Position of Employes" as follows:
The employes contend that the chauffeuring
and carting of material between Morris Park Shops
and the Dunton Electric Annex has always been
performed by the Chauffeurs covered by the Scope
of the Clerk's Agreement. Laborer E. Flynn [covered by IBEW Agreement, who has no seniority
rights and is rot covered by the Scope of the Clerks'
Agreement, picks up material, Monday to Friday
of every week, at Morris Park Shops, and delivers
it to Dunton Annex where lie is assigned to work.
The employes further contendthat this chauffeuring of material between Morris Park and Dunton
Annex was done once before, approximately two
years ago by other personnel at
Dunton Annex, not
covered by the Clerks' Agreement, and was stopped
immediately by a meeting between your assistant
Mr. E. DeCeck and Local Chairman F. Denzin.
The employes further contend that we do have
chauffeurs going between Morris Park and Dunton
Annex.
P-ra
Zranh
(U)
of the Scone of the Clerks Agreement reads as follov:s: Positions and v:orh comine
within t
he Scone of this at_.recment belonn to the
employes covered thorobv and nothim, in this a_rce-
ment shall be eonstrund to nrrmit the removal of
posilin-ie.
and v;-nrh %rori the a nnlic!tiea of these rules, - .
except
by a,~r~·-mer` bet-~·e-.n tho parties si··ratorv -
hereto
. (Emphasis supplied.)
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. PL(3 q5W
Please advise payroll date in which this claim
will be paid.
In the event you do not agree to the payment
of this claim, please consider this notice in accordance with the provisions of Memorandum of Understanding
INTO.
4, that you will set a date within (10)
days of the date you receive this letter for the purpose of discussing this claim.
The Chief Mechanical Officer, in reply to the Claim, made
admission as to the right to perform the involved work; and, denied the
Claim on September 16, 1966:
Your position that the chauffeuring and carting
of material between Morris Park Shoes an
d the -
Dunton Electric Annex has always been performed
by the chauffeurs covered by the s
cone of the Clerks'
Agreement is true and correct
, and to further sub
stantiate your position, the carrier did create a
' position of chauffeur and did hire a
truck for the
purpose of carting material from Morris Park to
Brooklyn Electric Car Shop. .
The contention that E. Flynn who has no rights
under the scope of the Clerks' Agreement is chauffering and carting material hetween Morris Park
and Brooklyn Electric Car Shop
every day is not
supported as the carrier maurtains a chauffeur and
truck for this specific detail.
On the basis that the carrier is carting material
in accordance with the provisions of the Agreement,
your claim on behalf of the three named claimants
is denied. (Emphasis supplied. )
On October 4, 1966, BRAC, in compliance with Rule 4-D-1 (h),
submitted to Carrier an "Ex-Parte Statement of Facts":
The Carrier admits that the chauffeuring and
carting of material between Morris Park Shops and
Dunton (Brooklyn) Electric Annex, has always been
performed by the chauffeurs. (See Carriers denial
of September 16, 1966)
The Carrier denies that E. Flynn, or any other
personnel at Dunton Electric Annex, who have no
rights under the Scope of the Clerks' Agreement is
chauffeuring material between Morris Park and
Dunton (Brooklyn) Electric Annex. This is incorrect, as a check of the records of (lie Gateman at
. PL B c754
Morris Park Shops and the records of the Stores
Attendants at Morris Park Storeroom, show that
E. Flynn and/or other personnel from Dunton
Electric Annex, come into the shops
in theirpri-
vate cars to pick-up material, Monday to Friday,
every week.
Chauffeur E. Blanks carts finateiall between
Morris Park Shops and Dunton((Brookly~ Electric
Annex on Tuesday and Thursday.
Chauffeur Buckley is on his relief day, Monday.
Chauffeur L. Walker is on his relief day,
Wednesday,
(Ed. note: The three named chauffeurs are
Claimants lierein.~
Carrier's "ex-parte statement of facts," dated October 20, 1966,
states:
The Carrier created a chauffeur's position and
hired a truck for the purpose of supplementing the
regular truck assigned to Dunton Electric Car Shop
and Brooklyn Electric Car Shop approxurately two
years ago. The requirements of Brooklyn Electric
Car Shop were such that the additional truck made -
deliveries each week of material from the Morris
Park Store Room. Requirements of service are
such that a truck assignment of five days a week to
Brooklyn Electric Car Shop
cannot economically be
supported, therefore, this truck is used to supply
material to other areas.
The use of other than emnlovees covered by the
scope of the Clerks'
A;recment 1=as been the practice
over many years. (Emphasis supplied, )
Following a meeting on October 26, 1966, Carrier, under date of
January 19, 1967, wrote to BRAC's General Chairman:
At the aforesaid meeting, you were advised that
the Assistant to the Chief Mechanical Officer was
making a check: as to how much material was being
transported by. other than chauffeurs. This study
proved that the amount of material being transported
is
negligible and, further,- that other than Miscellaneous Forces (Chauffers) have been used on occasion
to transport material from one shop to another for
many years, without protest. (Emphasis supplied. )
PLC 95N
In view of the foregoing, there is no basis for
this claim and it is, accordingly, denied.
From the above history of the,case as handled on the property, by
and between Carrier and BRAC, we find the only defenses proffered by
Carrier were:
1. IBEN Laborer, Flynn, did not chauffeur and
cart material between Morris Park and Brooklyn
Electric Car Shop "
every ddj;" -
· 2. A "truck assignment of five days a week to
Brooklyn Car Shop cannot economically be sup
' '.
` ported;"
3. Past practice: Employes other than BRAC
chauffeurs have for "
many years " performed
the work involved;" and
4. The material being transported by other than
BRAC chauffeurs "is
negligible
It
FINDD;GS AS TO APPLICATION
OF BRAC AGREEMENT
._
1. Paragraph (a) of the Scope Rule, standing alone, is general in
nature. But, paragraph (b) of that Rule is specific. (
NOTE: Paragraph
(b) is quoted in the BRAC's Claim of August 8, 1966, supra )-
2. The weight of authority of Third Division, National Railroad
Adjustment Board case law compels a finding that when the Scope Rule of
an agreement encompasses "positions and work" that work once assigned
by a carrier to employes %,,!thin the collective bargaining unit thereby
becomes vested in employes within the unit. and may not be removed
"except by agreement between the parties;"
· P
L1g q5y
3. Carrier admits that chauffeuring and carting of materials
between Morris Park Shops and the Dunton Electric Annex "hues
always"
been performed by chauffeurs covered 6y the scope of the BRAG Agreement (see, Chief Mechanical Officer's denial of Claim dated September
16, 1966, supra . Therefore, in the unequivocal language of paragraph
(b) of the Scope Rule, the identified work may not be removed from the
scope of the Agreement except by agreement of the parties -- no agreement
was fashioned relative to the instant dispute;
4. Carrier's defense that the work performed by IF3EW Laborer,
Flynn, was "negligible" is found wanting for two reasons: (1) the defense
is an affirmative one -- Carrier had the burden of proof which it did net
satisfy by material and relevant evidence of probative value; and (2) even
if proven it would estallish, only, that it had assigned work reserved to
BRAG chauffeurs (Scope Rule, paragraph (b)) to an employe stranger to the
BRAC Agreement. The magnitude and frequency of work unilaterally
wrongfully removed from the Scope of the BRAG Agreement is not a
justifiable defense;
5. Carrier's alleged defense of past practice fails for the following
reasons: (1) a Scope Rule such as paragraph (b) in the BRAG Agreement
is not ambiguous in the light of the case law o£ the Third Division, National
Railroad Adjustment Board; (2) parole evidence is admissible, material
and relevant in the interpretation o£ an ambiguous provision of an agreement
only to arrive at the intent o£ the parties; or, to find history, tradition,
custom exclusivity of contractual investment of right to work under a scope
rule general in nature -- paragraph (b) of the confronting Scope Rule is
specific;
6. The economic consequences of a bona
fide contract are not
PL
(3 951
material, relevant or of persuasive value before a forum charged with its
interpretation and application. If a party to a collective bargaining agreement finds, by experience, that as to it the term(s) are economically
onerous, the remedy is collective bargaining. This Board is without
jurisdiction to entertain such an argument and resolve it by fiat.
Carrier raised no issue on the property as to the measure of compensation prayed for in paragraphs 3 and 4 of the Claim.
For the foregoing reasons we flied and hold that Carrier violated
I
i
and violates paragraph (b) of the Scope Rule when it assigned or assigns'
' the work herein involved to an employe not within the collective bargaining`
unit of the BRAC Agreement. 1'7e,
therefore, will sustain paragraphs 1,
2, 3 and 4 of the Claim; and, will dismiss paragraph 5 of the Claim.
THE THIRD PARTY ISSUE
IBEW, third party herein, alleges and prays is its Submission:
We submit that the Carrier properly assigned
the Electrical Workers to perform the disputed
work and that the work is covered by the Agree-
, ment between The Long Island Rail Road Company
and System Federation No. 156,
International
Brotherhood of Electrical Workers. (See Car
rier's Exhibit A) which reads in part as follows:
ARTICLE III - DIFFERENTIAL FOR
CERTAI\ E\:PLOYEES
I
Effective with the signing of this agreement,
a differential of thirteen cents (13f per hour
will be granted to Electricians in gangs who
meet the necessary requiremei.ts of New York
State Motor Vehicle Bureau and
who are required , incident to their regular duties, to
operate motor trucks. (Emphasis supplied.)
We, therefore, request that your Honorable
Board find that the Carrier did properly assign the
work in dispute to the employes of the Electrical
Workers' Craft.
PL
e)
C?-5y
Carrier argues that: (1) the above quoted Article III of its Agreement
with MEW vests MEW. employes with a contractual right to perform the
work involved in this dispute; and, (2) the Article stands as proof that
BRAC employes do not have exclusive right to work.
Article III of the I33EIV Agreement does not vest
the work therein
described in IBEW employes. It is merely an undertaking of compensation
contractually due an IBEW employe if he is "required ... to operate motor
trucks."
Carrier may
require any of its
employes
to perform work of any
` ' nature -- crossing craft and class lines -- so long as the work is not
patently dangerous or its
performance by the assigned employe is barred
by law. The assigned employe, if grieved, must comply with the Carrier's
directive and seek his remedy through the grievance procedures.
Article III of
the IBEW Agreements stands only as proposition of
compensation for work specified therein which Carrier may require an
IBEW employe to perform; not a vesting in MEW employes of contractual
right to the work.
In the railroad industry
employes are often assigned to work not
i
covered by the job assignment or not within the scope of their collective
I
bargaining agreement. Such assignments often come into
being because of
exigencies faced by a carrier. When such assignments are made, Carrier
takes a calculated risk in that it may fiend itself contractually obligated to
compensate the employe assigned for the work performed; and, in addition,
pay another employe, contractually eligible, for work not performed by
him but as to which he had a contractual vested right. Cf. T-C. E. U. v
Union
Pacific R. Co. , 385 U. S, 157 (1961), -
An elementary principle of contract construction is destructive of
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PL 6 q5
L/
IDEW's contention. Article III of its agreement provides a measure of
compensation when one of the employes covered therein is "required ... to
operate motor trucks." It is uncontroverted that IDEW laborer, Fly,,,
used his private automobile to pick up materials from Morris Shops Storeroom and delivered them to Dunton Shops Annex. Q. E. D. : (1) Flynn eras
not required "to
operate motor
trucks"; (2) use of an employe's private
automobile is not within the contemplation of Article III of IBEW's,
Agreement.
We find that IBEW, third party intervenor, has no contractual right,
on behalf of its
members, to
the work involved in this dispute. But, if
employes covered by its Agreement are "required ... to operate motor
trucks" then, regardless as to what craft or class of employes may have a
contractual right to such work, the.IBEW employe assigned has a contractual right to be compensated as provided in Article III of the IBEW
Agreement. We, therefore, on the record before us, will deny MEW
Is
plea that the Board "find that the Carrier did properly assign the work in
dispute to the employes of the Electrical Workers' Craft.
AWARD
1. Paragraphs 1, 2, 3 and 4 of the Claim are
I
sustained.
2. Paragraph 5 of the Claim is dismissed.
3. The third party plea of IDEW is not supported by the Agreement between it and
Carrier. It is denied.
ORDER
Carrier is hereby ordered to make effective the AWARD, supra, asof the date of its issuance shown below.
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tI. Dorsey,~Ghairman
Neutral Member
H.IvI, Chancey v;fce .i. J. Yard
Carrier Member
Employe Member
Y~
f
Issued at Washington, D. C. this ///Ilaay of ,t,/t' ' ,: 1972.