Five subdivisions of the carmen as follows: Pattern makers Upholsterers Painters Electro-platers Other carmen The seniority lists will be open to inspection, and copy furnished the committee. Classification of Work. RULE 134. Carmen's work shall consist of building, maintaining, dismantling (except all wood freight train cars), painting, upholstering and inspecting all passenger and freight cars, both wood and steel, planing mill, cabinet and bench carpenter work, pattern and flash making and all other carpenter work in shops and yards, except work generally recognized as bridge and building department work; electroplating and locksmith's work; carmen's work in building and repairing motor cars, lever cars, hand cars and station trucks, building, repairing and removing and applying locomotive cabs, pilots, pilot beams, running boards, foot and headlight boards, tender frames and trucks, pipe and inspection work in connection with air brake equipment of freight cars; applying patented metal roofing; operating punches and shears, doing shaping and forming; work done with hand forges and heating torches in connection with carmen's work; painting, varnishing, surfacing, decorating, lettering, cutting of stencils and removing paint (not including use of sand blast machines or removing vats); all other work generally recognized as painters' work under the supervision of the locomotive and car departments, except the application of blacking to fire and smoke boxes of locomotives in enginehouses; joint car inspectors, car inspectors, safety appliance and train car repairers; oxyacetylene, thermit and electric welding on work generally recognized as carmen's work; and all other work generally recognized as carmen's work." Any reasonable interpretation of Rule 31 cannot possibly provide any support for the claim. In no sense does it constitute a description or definition of specific job content, nor is it a substantive grant of specific work or duties to any particular craft or subdivision thereof. It is a simple rule of description providing for point seniority and merely cites the job titles of carmen. Likewise, Rule 134 does not support the claim. In fact, it actually supports the carrier's position. The rule outlines the duties and job content only of the carmen's craft. It does not restrict any particular duties to pattern makers, upholsterers, painters, etc. On the contrary, the duties described under the rule can be performed by any carman. Of a certainty, and controlling here, the rule does not state that no one but only carmen-painters may paint, varnish, surface, decorate, letter or stencil. A case similar in fact and principle was recently decided by the Second Division of the Board in Award 3512 (Referee Bailer). In that case, the carrier had a facility where both major locomotive and car painting work was performed, as well as stenciling of cars relating to location and date of journal box packing, weight, and other incidental information. The claimant was a carman on the painters' seniority roster and was assigned on the first shift as in our case. He performed painting work on his shift and also stencil work on cars. However, just as in the instant case, other carmen painted stenciled information on cars while working the other shifts when the claimant and no other painter were on duty. Subsequently, the locomotive and car painting functions were discontinued in the particular shop involved, and since there was insufficient painting work remaining to justify a painter's job, it was abolished. Stenciling of date, weight and other information on cars was performed by other carmen. The organization filed claim contending that painters' work was being performed by carmen other than painters and that such work belonged to the claimant carried on a separate painters' seniority roster. The organization relied upon a seniority provision substantially like Rule 31 here involved, reading in pertinent part: "Four subdivisions of the carmen as follows: Pattern makers Upholsterers Painters Other carmen" The organization also cited a "Classification of Work" provision practically identical to Rule 134 in the case here. The organization maintained that these rules were violated. The carrier in Award 3512 contended: "It is significant that while under Rule 30 (a), there are four subdivisions of carmen, there is no requirement that the work be separated, it being clearly intended that there not be any prohibition against employes of the carmen's class or craft performing any and all types of work, described in Rule 149. ***This is not work contracted under Rule 149 solely to carmen classified as carman painter."* The Board denied the claim and held: "The weight of the evidence shows that the only work previously performed by claimant Haenel, a painter in the carman's craft, which since his furlough has been performed by other carmen who are on a separate seniority roster at Columbia, South Carolina, is the stenciling of lightweight and date freight cars are re-lightweighed, location and date freight car journal boxes are repacked, and possibly other stencil work of a similar character. Painting as such and the cutting of stencils were discontinued at this location at or prior to the time of claimant's furlough. *Unless otherwise indicated, emphasis is supplied throughout. The subject stenciling work is not within the exclusive jurisdiction of painters in the carman's craft. The transfer of the involved work to other carmen under the subject circumstances was not an agreement violation. A denial award is indicated." Accordingly, it should be clear that the claim can find no agreement support. Rule 31 has nothing to do with the claim and Rule 134 does not compartmentalize any work to be performed by carmen-painters as opposed to other carmen. The work there described can be performed by all carmen. In addition, even if there were any ambiguity in the rules previously considered, past practice defeats the claim. The long-standing practice has been for carmen other than painters to do the work here in dispute at those times when an employe on the painters' seniority roster was not on duty. Painters have not exclusively performed such work in the past so as to support any demand to the work to the exclusion of all other carmen. In fact, the specific work here in dispute, namely, the stenciling of locomotive tenders, has long been performed at Cheyenne by carmen other than painters during periods when there was no painter on duty. Painters have not exclusively performed such work. Actually, stenciling is not painting in the well understood sense of covering a surface by brush or spray apparatus for preservative or decorative purposes. Stenciling, when the stencil is already cut and available, certainly requires no skill and is incidental to some other activity. There is no provision in the applicable agreement which will support this claim. Evidence of past practice demonstrates that painters have not exclusively done the work in dispute. The claim is without merit and should be denied. FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein. Parties to said dispute were given due notice of hearing thereon. Rule 134, the Classification of Work rule, expressly includes "painting, varnishing, surfacing, decorating, lettering, cutting of stencils and removing paint (not including use of sand blast machines or removing vats);" and painters constitute one of the five separate subdivisions of carmen specified in Rule 31, the Seniority rule. To paint is to apply paint to a surface for preservation, decoration, identification, etc. It is well known that for efficiency and uniformity in such painters' work as lettering, numbering and decorative designs, paint is often applied with the use of stencils. Therefore, the cutting of stencils is sometimes a necessary preliminary to such painting, which presumably explains its association in Rule 134 with other work commonly performed by painters. Stencils may be used for other purposes than the performance of painters' work-for instance, in connection with other work, to record the date, place or other particulars concerning its performance, as in Award 3512. But certainly stencils are not so alien to the painting process that their use converts it into something else. The work in question clearly constitutes painting and that fact is virtually conceded by the Carrier's statement that it was because no painter was employed on the second shift that the work was properly done by another employe. If it were not considered painters' work, it would not need the lack of a painter to excuse its work by others. This case is not analogous to Award 3512, for here the stencil was used to accomplish painting work, and not merely to record data concerning other work. In the dispute on the property and before this Board it was alleged by the Carrier, and denied by the Organization, that by custom this work had been done by other carmen at Cheyenne when no painter was on duty. But no evidence was submitted by either party until the Carrier's Rebuttal, to which it appended as exhibits three statements tending to support its contention. Having no other purpose, they should have accompanied Carrier's Ex Parte Submission to permit their rebuttal by the Organization. (Circular No. 1, adopted by the National Railroad Adjustment Board on October 10, 1934; Award No. 2374.) They do not constitute rebuttal, because there was no contrary evidence to rebut. The Organization's objection to these statements must be sustained. Consequently, the Board cannot consider either their sufficiency to prove an established usage at Cheyenne, or the question whether such usage at one point can overcome an express Classification of Work rule, or such rule coupled with separate seniority rosters, as here. This Division has repeatedly held that painter's work cannot properly be performed by employes not under the Carmen's Agreement when a painter is available. Awards 1269, 1799, 2214, 3405, 3406 and 3410. The Carrier contends that these awards are not in point, since here the work was performed by another Carman. But as noted above, there are five carmen seniority lists, one of which is for painters only. Thus, they are entitled to protection against other carmen as well as against other crafts, and this Board has so held in Awards 1519, 2459, 3256 and 3410. Award 2459 pointed out that although there was "but one classification of work rule for carmen," there were "four seniority subdivisions in the carmen craft." It said: "Certainly those craftsmen have seniority preference to the performance of the work specified" in the classification of work rule "on the basis of the subdivision in which they hold seniority," where available. The Agreement has been violated and Claimant is entitled to a call of two hours and forty minutes. Pay for time not worked is computed at pro rata rate. |