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sive evidence that its interpretation of "shop points” is the one intended by the parties. Accordingly, the claim must fail.
NATIONAL RAILROAD ADJUSTMENT BOARD
ATTEST: Harry J. Sassaman
Dated at Chicago, Illinois, this 15th day of November, 1962.
DISSENT OF LABOR MEMBERS TO AWARD NO. 4077
The majority admit that the repairs to the clamshell was made by Maintenance of Way employes only one hundred feet from car repair facility, where a machinist was at work; it also admits that Rule 52 (a) includes the repair and maintenance of cranes and hoists as machinists' work.
There is no ambiguity here – it then departs from logic and reason and attaches an application to the 1938 Letter of Understanding which is erroneous and was never the intent of practical railroad understandings or negotiations — the word exclusively does not appear in the agreement, or in the 1938 Letter of Understanding, therefore it cannot be validly used to excuse the majority's determination.
The majority's conclusion that:
“The Division is forced to question this position. It appears that ‘shop points' is in itself a somewhat ambiguous phrase. The parties could have avoided ambiguity by restricting the exception through use of some such words as 'when such equipment is out on line of road' or 'this exception not to apply when such equipment is working in yards where maintenance of equipment repair shops are located.' But the parties did not so clarify their intention, and this Division is not empowered to do so under the guise of interpretation. The words, 'shop points,' must be held to be ambiguous." (Emphasis ours.)
The common railroad term shop point is nothing new and is referred to in the agreement many times under various rules in the determination of seniority points, road trip rules, travel expense, relief rules, transfer rules, etc. Ambiguity does not exist here — the rules and the facts of this record are crystal clear, since shop yards and locations are as much a part of shop points as the buildings themselves. The majority is in error and we dissent.
C. E. Bagwell
Docket No. 3924
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 Wednesday, January 6, 1960.
2. That accordingly, the Missouri Pacific Railroad Company be ordered to compensate Machinist C. T. Grisby in the amount of four (4) hours at the punitive rate for this date (January 6, 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 Wednesday, January 6, 1960, it was found that diesel clamshell X-1034, which was located just outside the diesel shop, had a defective pump. Instead of calling a machinist to perform this work, maintenance of way truck driver Clyde Raines removed the fuel pump on clamshell X-1034, went to town and purchased a new one, returned to the property and applied the pump and cleaned all the fuel filters.
Machinist C. T. Grisby, hereinafter referred to as the claimant, was available to perform this work and inasmuch as this is work belonging to the machinists' craft the carrier violated the agreement when it permitted a maintenance of way employe 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 as evidenced by copy of a letter attached and identified as Exhibit
A, dated August 2, 1938, directed to General Chairman-J. A. Keller over the signatures of Mr. C. A. Clements, Assistant General Manager, and 0. A. Garber, Chief Mechanical Officer, 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 claim 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 6, 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. On the morning of January 6, 1960, the operator of clamshell X-1034, a self-propelled, diesel crane, started out through the train yard at Kansas City from the sand track where the clamshell had been tied up to begin his day's work. The operator of the clamshell had not moved the clamshell far when its diesel engine failed. The operator reported the failure to the roadmaster under whom he worked. The roadmaster instructed Clyde Raines, a mechanic for the maintenance of way department, to assist the operator in locating the trouble. It was determined that the fuel pump had failed, causing the motor to stop. The roadmaster instructed Clyde Raines, who was furnished a company truck, to go to town and buy a new pump, which he did. On his return, the operator with the assistance of the mechanic replaced the fuel pump in about 30 minutes. While the pump was removed, they also cleaned the filters in the fuel line on each side of the pump. Necessary steps were then taken to restart the engine. Replacing the fuel pump proved to have corrected the difficulty.
3. The job title of the operator of the clamshell is operating engineer. He is represented by the International Union of Operating Engineers. The job title of the mechanic is motor car repairman (because motor cars were the first of the roadway equipment and work equipment to be powered by internal combustion engines). As a part of the maintenance of way department, his duties include assisting operators of roadway equipment and work equipment in maintaining their own equipment. He is represented by the Brotherhood of Maintenance of Way Employes.
4. This is a claim for a four-hour call on behalf of C. T. Grisby, a machinist in the locomotive department at Kansas City, because other than machinists replaced the fuel pump and cleaned the filters on the clamshell. Claimant was not on duty at the time the work was performed.
5. The claim was presented to the foreman and appealed through channels to the chief personnel officer and discussed in conference on June 28, 1960. The carrier confirmed the results of the conference in a letter dated July 5th, reading as follows:
“In conference on June 28, 1960, we discussed claim in behalf of Machinist C. T. Grisby for four hours' compensation at the time and one-half rate because other than machinists made certain repairs to clamshell X-1034 on January 6, 1960, at Kansas City.
During the conference we explained to you that clamshell X-1034 was operating in the West End train yard at Kansas City at the time the engine failed by reason of a defective fuel pump which was changed out by the operator assigned to said clamshell. It appears to be your position that this claim is supported by Rule 52 (b) of the Shop Crafts' Agreement which provides that repairs to clamshells may be made by roadway machine operators while away from back shops; it being your position that there is a back shop at Kansas City.
As you know, following the dieselization of the motive power on this property, back shops ceased to exist, and there is no back shop located at Kansas City; furthermore, the work here complained of was not performed in the Maintenance of Equipment Department or the diesel facility at Kansas City.
For these reasons there is no basis for claim for a call in behalf of Machinist Grisby. In any event, had there occurred a violation by reason of the work here in question having been performed by other than a machinist, there could be no basis for a claim because machinists were on duty in the Maintenance of Equipment Department at Kansas City and could have been used had their services been required.
The decision contained in our letter of May 19, 1960, is hereby affirmed and claim is respectfully declined."
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 (i), 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 and 2972 on this property where the carrier was required to give notice to maintenance of way employes involved in each of those disputes.