did not waive or forfeit claimant's right to complain of the continuing violation thereafter subject to the limitations of Rule 21(d). Claim sustained. AWARD NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: Harry J. Sassaman Executive Secretary Dated at Chicago, Illinois, this 6th day of February, 1963. DISSENT OF CARRIER MEMBERS TO AWARD 4124 This award sustaining the claim as set forth in the findings is in error. On page 2, paragraph 5, of the award there is a statement that "Hunt held what amounted to a second Chief Weighman's position, and did not supplant Finn, until the latter's demotion in April 1959, when Hunt became the only Chief Weighman. This claim was not filed until nearly a year later, and after Finn's death. The Carrier contends, therefore, that it came too late under Rule 21." The above quoted paragraph makes two specific points: 1. That Hunt held what amounted to a second Chief Weighman's position and did not supplant Finn until the latter's demotion in April, 1959. Regarding this conclusion, it is true that the Grain Company through its generosity and its desire to assist Mr. Finn in a time of extreme difficulty, paid him his full wages which he had received when he was serving as Chief Weighman. It is not correct that merely because the Grain Company paid Mr. Finn his full wages during his period of illness and also during the period of his physical incapability, that this should be a basis for ruling that he held or performed the duties of Chief Weighman. Due to the responsibilties of the Chief Weighman's position and its proper performance insofar as the Grain Company was concerned, extreme and careful consideration had to be given as to who was qualified to perform the Chief Weighman's duties. Mr. Hunt, in the opinion of the Grain Company, was the only one assigned to this position and held full responsibility for same. 2. Regarding the point that the Carrier contends the claim was filed too late under Rule 21, the fact that the Firemen and Oilers waited until nearly a year would indicate that this was an afterthought and would not constitute a continuing violation. In the Carrier's rebuttal is stated if Finn was considered to have held the Chief Weighman's position at the time of his transfer to the Truck Dump Weighman's position, then, in accordance with Rule 14(a), claim should have been initiated within sixty days after date of April 20, 1959, the date Finn's pay was reduced. Even though the Firemen and Oilers were certified on June 8, 1954, an agreement was not signed until November 25, 1958. During this period there was no agreement in effect, nor any Firemen and Oilers' rules controlling since the employes involved were classed as "miscellaneous employes” at the Grain Company. For the reasons stated above, we dissent. P. R. Humphreys H. K. Hagerman C. H. Manoogian F. P. Butler W. B. Jones Docket No. 4039 2-L&N-MA-263 NATIONAL RAILROAD ADJUSTMENT BOARD SECOND DIVISION The Second Division consisted of the regular members and in PARTIES TO DISPUTE: SYSTEM FEDERATION NO. 91, RAILWAY EMPLOYES' LOUISVILLE & NASHVILLE RAILROAD COMPANY DISPUTE: CLAIM OF EMPLOYES: (a) That the L & N Railroad Company, hereinafter referred to as the Carrier, violated, (1) Rule 57 of the Agreement, (2) No-transfer of work Understanding, (3), Safety Rules and (4) Long established past practices, when it abolished three (3) Crane-Rigging positions and turned the duties thereof over to other than machinist-helpers to perform the work. (b) That the Carrier be ordered to pay the Machinist-Helpers, hereinafter referred to as the Claimants, at the applicable straight time rate for twenty-four (24) hours per day, beginning May 23, 1960, and continuing until settlement is reached. (c) That the Carrier be ordered to restore the work herein involved to the machinist-helpers. EMPLOYES' STATEMENT OF FACTS: In Shop 1, at the carrier's South Louisville, Kentucky shops, there are two (2) overhead cranes. One (1) is of two hundred (200) tons capacity and the other of ten (10) tons capacity, both of which have been regularly operated for thirty (30) years or more, and a fulltime crane-rigger has likewise been regularly assigned to these cranes, one (1) on first shift and one (1) on second shift, Monday through Friday. These crane-rigging positions were always advertised by bulletin and the senior machinist-helper to bid was awarded the position. The third overhead crane involved in this dispute is located in what was formerly the L & N foundry. Some fifteen (15) years ago, the foundry was converted to a Diesel parts repair shop and identified as Shop 17. This overhead crane, has, since that time, operated on a full time basis, first shift Monday through Friday, and the crane-rigging position was filled in exactly the same manner as the crane-rigging positions in Shop 1. On May 23, 1960, the three (3) crane-rigging positions were abolished and the duties thereof turned over to any employe regardless of craft or classification in the shop who might need the services of the cranes. As a result, three (3) machinist-helpers were furloughed. This created a situation whereby anyone, including the youngest and most inexperienced laborer or apprentice, was allowed to assume the responsibility of rigging the various and sundry items moved about by the cranes. The three (3) cranes herein involved continued to operate, as before, on a full time basis, thus establishing the fact that the duties of the crane-riggers still existed. The right of machinist-helpers to exclusively perform these duties has never been questioned or challenged. This dispute has been handled with all officers of the carrier designated to handle disputes including the highest designated Officer of the carrier, all of whom have failed to make satisfactory adjustments. POSITION OF EMPLOYES: When the carrier abolished the three (3) crane-rigging positions and arbitrarily turned the work over to others, it violated; (1) Rule 57 of the current agreement, (2) the no-transfer of work understanding, (3) the carrier's own safety rules, and (4) long established past practices, as explained below: (1) Rule 57 (Machinist-Helper classification of work) provides that "Helpers work shall consist of . . . . and all other work generally recognized as helper's work." The helpers had exclusively been assigned the crane-rigging positions for all the years they had existed and no craft or individual has ever questioned or challenged the rights of the helpers to this work. This certainly should establish the work as that which would fall within the meaning and jurisdiction of the rule quoted above. Samples of bulletins that have for many years advertised these jobs to machinist-helpers are submitted herewith and identified as Exhibits A and B. (2) The shopcraft organizations, în 1943, entered into a "cooperating" understanding and the carrier agreed to comply with this understanding, by letter dated August 9, 1943, and signed by the carrier's director of personnel. This understanding provided, when jurisdictional disputes arise between two (2) crafts, the company should make no changes whatever in the work involved until the matter is first handled and agreed to by the General Chairman of the crafts involved. . . ." The carrier reaffirmed its concurrence in this matter, by letter of November 4, 1949 and signed by the director of personnel. Therefore, when the carrier abolished the three (3) jobs and arbitrarily turned the work over to anyone (regardless of craft or classification) in the shop, it deprived three (3) machinist-helpers of their rights and transferred work from one craft to another without the consent of the general chaimen as provided by the understanding. (3) It is submitted that by abolishing the three (3) regular crane-rigging positions and permitting and/or assigning anyone and everyone, indiscriminately, to the task of hooking and unhooking loads to be moved, the carrier is in violation of its own safety rules. Safety Rule 164 states, "Cranes must not be moved without signal from the one man designated to give signal and only when such signal is clearly understood." We submit that this rule clearly shows that it was intended that one (1) man, so designated and experienced was to be charged with the responsibility of carrying out these duties that are so vital to the safety of the employes. Rule 166 states, "Care must be taken to see that a load to be lifted is securely hooked and is well balanced." New and inexperienced employes, and even some of the older employes who have not performed this type of work or had an opportunity to familiariz themselves with it, certainly cannot be expected to be able to safely carry out these duties. Thus, we hold that the carrier is not only violating the letter of the rules quoted above, but is also violating the spirit and intent of the rules. At the various periodic safety meetings held in gangs or departments, there have been quite a number of complaints made, and all of these complaints and expressions of concern have not been made by the machinist craft. (4) For thirty (30) or more years, crane-riggers have been regularly assigned to work with the two (2) cranes in Shop 1 and for about fifteen (15) years (ever since the foundry was converted to a Diesel Repair Shop) have worked with the crane in Shop 17. These crane-rigging jobs have historically and exclusively been performed by machinist-helpers. Their right to perform this work has never been questioned or challenged. In conclusion, we would like to point out that when this dispute first arose, the general foreman declined the claim by stating that "In the past Crane Hooking has been performed by all crafts where several crafts have been assigned to make repairs to equipment in a department." This statement simply is not true concerning the three (3) jobs in the instant case and our submission proves it. In the next step of handling, the shop superintendent attempts to confuse the issue by describing practices in the car and blacksmith departments. We submit to this Board that these departments are not involved in this case and we are not trying to claim, or to insinuate that machinist-helpers should be used on all crane-rigging jobs regardless of where they are located. We only claim the duties of rigging on the three (3) cranes in this case. When the claim is appealed to the chief mechanical officer in the next step, a different reason is given for declining. This time it is maintained simply that crane-rigging is not covered by the agreement. No doubt, there are literally thousands of duties that are not specifically covered in our agreement booklets. If every item of work and all duties were specifically covered, many volumes of books would be required, and there would still be some things left out. And finally, when the claim is appealed to the highest designated official, he declines because Rule 57 does not "contemplate" that crane-rigging will be done by machinist-helpers. Surely, thirty (30) or more years of machinisthelpers performing crane-rigging, by shop bulletin, would establish this work as that covered by Rule 57. Throughout the handling of this case, the carrier has been inconsistent in its position and was arbitrary in doing away with the jobs, when the duties thereof still existed. CARRIER'S STATEMENT OF FACTS: On May 23, 1960, three assignments as crane rigger were abolished at our South Louisville, Kentucky, shops. POSITION OF CARRIER: In handling this dispute on the property, employes contend a violation of Rule 57 of the current shopmen's agreement. |