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Docket No. 3921
NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
MISSOURI PACIFIC RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That under the current agreement the Missouri Pacific Railroad Company improperly assigned other than machinists to make repairs to diesel clamshell X-1034 at the Kansas City, Missouri shop on Monday, January 4, 1960.
2. That accordingly, the Missouri Pacific Railroad Company be ordered to compensate Machinists F. C. Davis and R. W. Marye in the amount of four (4) hours each at the punitive rate for this date (January 4, 1960).
EMPLOYES' STATEMENT OF FACTS: The Missouri Pacific Railroad Company, hereinafter referred to as the carrier, maintains a diesel shop employing some 135 machinists at Kansas City, Missouri.
On Monday, January 4, 1960, it was found that new cables were needed on the bucket of diesel clamshell X-1034. This clamshell was at the car department track next to the wrecker spur, which is approximately 100 feet from point where machinist is employed for the purpose of making such repairs.
Machinists F. C. Davis and R. W. Marye, hereinafter referred to as the claimants, were available to perform this work, and inasmuch as this is work belonging to the machinists' craft, the carrier violated the agreement when it permitted maintenance of way truck driver Clyde Raines and three (3) other maintenance of way employes to perform this work.
This matter has been handled up to and including the highest designated officer of the carrier who has refused to adjust it.
The Agreement of September 1, 1949, as subsequently amended, is controlling.
POSITION OF EMPLOYES: It is not in dispute that the work was performed at Kansas City or that the work was performed by other than machinists.
It is not in dispute that the claimants established and maintained seniority rights within the subdivision of machinists under the terms of Rule 25, captioned "SENIORITY" and that they were regularly employed as such as provided in Rule 26 (a) of the controlling agreement captioned “ASSIGNMENT OF WORK:" in pertinent part reading:
(a) None but mechanics or apprentices regularly employed as such shall do mechanic's work as per special rules of each craft, ...
to perform machinists' work covered in Rule 52 captioned "MACHINISTS CLASSIFICATION OF WORK:" in pertinent part reading:
(a) Machinists' work, including regular and helper apprentices, shall consist of laying out, fitting, adjusting, shaping, boring, slotting, milling, and grinding of metals used in building, assembling, maintaining, dismantling (see Note A) and installing machinery, locomotives and engines (operated by steam or other power), engine inspecting; pumps, engine jacks, cranes, hoists, elevators, pneumatic and hydraulic tools and machinery, shafting and other shop machinery, ratchet and other skilled drilling and reaming except on drill presses (see Note B); tool and die making, tool grinding, axle truing, axle, wheel and tire turning and boring, air equipment, lubricator and injector work; removing, replacing, grinding, bolting and breaking of all joints on exhaust pipes and super-heaters; oxyacetylene, thermit and electric welding on work generally recognized as machinists' work; the operation of all machines used in such work; machine and link grinding and passenger motor cars; removing, repairing and applying trailer and engine trucks and parts thereof; cab stands or sheets, waste sheets, runningboard brackets, headlight brackets, hand rail brackets, smoke stack saddles, smoke stacks, sand boxes and dome castings; locomotive spring and spring rigging work, driver brake and brake rigging (see Note C); and all other work generally recognized as machinists' work. Machinists may connect and disconnect any wiring, coupling, or pipe connections necessary to make or repair machinery or equipment.”
Within the meaning of paragraph C of Rule 52 reading:
"(c) This rule shall not be construed to prevent engineers, firemen, cranemen, operators of steam shovels, ditchers, clam shells, wrecking outfits, pile drivers and other similar equipment from making any repairs to such equipment as they are qualified to perform while away from back shops."
Machinists are to perform maintenance and repairs such as is here involved except when such equipment is on line of road and then such maintenance and repairs may be performed by engineers, firemen, cranemen, or operators. Truck drivers are not included in that rule.
The carrier is fully aware of the meaning, purpose and intent of the controlling rules, wherein it is clearly stated:
“This case was discussed in our conference 1st inst., and it was mutually agreed:
That the intent and application of Rule 52(c) wage agreement means operatives of MofW work equipment, such as named therein, will not make repairs to such equipment when they are moved to or working in shop points, such as was done on clam shell X-1016 at North Little Rock on July 1, 1938."
It is indisputable that the carrier elected to assign this work to other than machinists on January 4, 1960, and when it did so the agreement was violated and the claimants were damaged.
The work here involved belongs to machinists covered by the controlling agreement and could not in the factual circumstances properly be assigned to others. The machinists were deprived of the work and accordingly the claim is subject to be sustained by your Honorable Board.
CARRIER'S STATEMENT OF FACTS:
1. This dispute is governed by an agreement between the parties hereto effective September 1, 1949.
2. While clamshell X-1034 was working in the train yard in the Kansas City Terminal the first part of January, 1960, the cable to the bucket had become worn through normal usage and required replacement. On January 4, 1960, the operator of the clamshell, who is represented by the International Union of Operating Engineers, replaced the worn cable. The clamshell and its operator are assigned to and are a part of the maintenance of way department. Clamshells are used for many purposes, but primarily for the maintenance of the track.
3. This is a claim on behalf of F. C. Davis and R. W. Marye, who are machinists employed at Kansas City in the diesel facility, a part of the maintenance of equipment department. Claimants were not on duty at the time the cable was replaced.
4. The claim was presented to the foreman and appealed through channels to the chief personnel officer.
POSITION OF CARRIER:
AS TO NOTICE
The Railway Labor Act requires that notice be given to all parties involved. This requirement is found in Section 3, First (j) of the Act reading:
“(j) Parties may be heard either in person, by counsel, or by other representatives, as they may respectively elect, and the several divisions of the Adjustment Board shall give due notice of all hearings to the employe or employes and the carrier or carriers involved in any disputes submitted to them.”
In construing Section 3, First (j), the courts have consistently held that awards of the National Railroad Adjustment Board are void unless notice shall have been given to all parties involved in disputes submitted to said Board. See Hunter et al vs. A.T. & S.F. Railway Co., et al, 171 F (2nd) 594, affirming 78 F. Supp. 984; ORT vs. NOTM, 135 F. Supp. 825, 229 F. 2d 59, certiorari denied 350 U. S. 997, 76 S. Ct. 548.
The Division has consistently followed the court decisions by requiring notice be given to all employes involved in a dispute. See Awards 2971, 3171 and 3172 on this property where the carrier was required to give notice to Maintenance of Way Employes involved in each of those disputes.
In the instant case, there can be no doubt that the employes represented by the International Union of Operating Engineers are involved in this dispute. The work claimed by the machinists was performed by the operator of the clamshell who would be deprived of the work if the machinists were to prevail. Accordingly, notice should be given to
Mr. A. E. Phillips, General Chairman
of the pendency of the instant dispute so that all employes involved in this dispute will have an opportunity to be present and to be heard.
AS TO THE MERITS
It is the position of the carrier that the claim must be denied because (1) the work of replacing the cable was performed outside the maintenance of equipment department and (2) the work performed was routine maintenance which may be performed by work equipment operators as clearly recognized by Rule 52 (c).
The employes in support of the claim cite paragraphs (a) and (c) of Rule 52, Award 1874 of your Board and certain correspondence between the parties. Let us discuss the foregoing contentions.
A clamshell is one of a number of types of on-track, self-propelled cranes generally referred to as work equipment. A clamshell is frequently used particularly in a large terminal for all types of lifting work but primarily used for the maintenance of the track. Work equipment comes under the jurisdiction of the maintenance of way department. The operator of clamshell X-1034 while working in the Kansas City Terminal reports to the roadmaster who in turn reports to the division engineer, who is responsible to the superintendent for line or operating purposes and to the district engineer and engineering department for staff or administrative purposes. A superintendent maintenance of way equipment headquartered in St. Louis in the engineering department has general supervision over the distribution of work equipment and planning for maintenance, repairs, shopping and purchasing of work equipment.
The cable on clamshells wear out through normal use and must be replaced periodically. The length of time a cable will last depends on circumstances in each case, but generally need replacing about every 18 months. If a cable breaks, the cable must, of course, be replaced. Clamshells are scattered all over the property and cables are kept in supply for replacement purposes by the maintenance of way department. The operator replaces the cable when necessary as a part of the routine maintenance of the clamshell the same as the necessary oiling and greasing, adjusting the mechanism and the like. The machinists do not object when the operator replaces a cable on line of road miles from a terminal. As we shall show, it makes no difference in the application of the agreement that the clamshell was in the train yard in the Kansas City Terminal rather than on line of road far distant from a terminal when the work was performed so long as the work is performed outside the maintenance of equipment department.
The demarcation between the train yard where trains are yarded, switched and assembled and mechanical facilities such as diesel shop, power plant, test laboratory, fuel unloading track, outside inspection tracks and supporting facilities such as fueling and sanding stations and the separate car repair facility is easily ascertained and well known by those employed at Kansas City. Mechanical and transportation facilities are separted by designated switches. For example, the switches leading to the car repair facility from the train yard separating the mechanical department from the transportation department have special locks. Only mechanical department foremen have keys so that switch crews cannot use the tracks by mistake. It is readily apparent that the designated switches between the car repair facility and the train yard can be easily ascertained. The other designated switches can be as easily identified.
The cable was replaced while the clamshell was under the jurisdiction of the maintenance of way department and while in the east train yard, a part of the transportation facilities. The agreement with the shop craft employes is limited as plainly stated on the cover and title page,
"to those who perform the work specified in the agreement in the Maintenance of Equipment Department."
The agreement does not give the employes the right to any work outside the mechanical department. The work performed in the maintenance of equipment department is classified as between the various crafts and prescribes rates of pay and working conditions. This does not mean, of course, that shop craft employes cannot be used elsewhere when needed. The agreement specifies how an employe is to be paid when sent out on line of road and the carmen have special rules relating to wrecking service and so forth. But the fact remains that the carrier has not contracted to shop craft employes exclusively any work outside the maintenance of equipment department. This question has been settled on this property by awards of your Board.
In Award 999, maintenance of way employes repaired a coal loader located outside the mechanical facilities in the Kansas City Terminal. Your Board denied a claim on behalf of two machinists and machinist helpers employed in the roundhouse because
"The evidence of record supports the conclusion that the work involved in this proceeding was not performed in the Maintenance of Equipment Department, subject to the controlling agreement effective July 1, 1936, and that its assignment to Maintenance of Way employes did not constitute a violation of that agreement.”
In Award 3171, maintenance of way employes manufactured pallets in their own carpenter shop at DeSoto. Your Board denied the claim on behalf of carmen employed in the freight car facility because