"April 8, 1960 013.295.7 Mr. C. L. Anderson General Chairman, I.A.M. 254 East Main Street Decatur, Illinois Dear Sir: Referring to the meeting held in my office on April 4, 1960, in regard to time claim in favor of Machinist V. T. Ware for thirteen (13) hours at the overtime rate due to Boilermaker C. Haynes performing the work of welding on Diesel 1014 at Missouri City on January 7, 1960: This will confirm our decision as stated in the meeting of April 4, 1960, that time claim as presented, is hereby declined for the following reasons: 1. This Carrier had Machinists Clyde Hooten and Joseph McNally at Missouri City at the time of this claim and they were regularly assigned as machinists at Kansas City. Since neither of these men were qualified to perform the welding necessary on Diesel 1014, the Master Mechanic called Boilermaker Welder C. Haynes to perform this work. 2. The regular assigned welder at Moberly, Mr. C. E. Vandervoort, was on vacation at the time of this claim. 3. The interpretation of Rule 29 of the existing agreement, reads in part as follows: 'Welders of one craft may do the work of another craft, regardless of the fact there may be employed a welder or welders of the craft in which the work is being done.' Yours truly, /s/ B. J. Payne" 11. On January 10, 1961, the carrier received a copy of letter dated January 9, 1961, signed by Mr. Michael Fox, of the Railway Employes' Department addressed to the Executive Secretary, National Railroad Adjustment Board, Second Division, containing notification of intention to file ex parte submission involving the instant case. 12. There is an agreement in effect between this carrier and its employes represented by System Federation No. 13, composed of the shop craft organizations, one of those being the International Association of Machinists, party to this dispute, effective June 1, 1939, as amended. 13. Rule 29 of the controlling agreement, including the agreed-upon interpretation thereof, reads: "RULE 29. WELDERS (a) In compliance with the special rules included in this agreement, none but mechanics and their apprentices in their respective crafts shall operate oxyacetylene, thermit, or electric welders. Where oxyacetylene or other welding processes are used, each craft shall perform the work which was generally recognized as work belonging to that craft prior to the introduction of such processes. At points where there is not sufficient welding for a member of each craft at the point employed, a welder or welders of any craft employed may do the welding of all crafts. (b) When performing the above work for four (4) hours or less in any one day, employes will be paid the welder's rate of pay on the hourly basis with a minimum of one (1) hour; for more than four (4) hours in any one day, the welder's rate of pay will apply for that day. INTERPRETATION (a) Insofar as it is practicable to do so, the work of autogenous welders will be confined to their respective crafts; when necessary in the interest of efficiency and economy, welders of one craft may do the work of another craft, regardless of the fact there may be employed a welder or welders of the craft in which the work is being done. (b) In case it is necessary to reduce forces, in making a furlough, seniority will govern, except if it is going to result in the furloughing of a welder who is needed and the older man in seniority is not capable of welding, the older man or men will be furloughed and the welder will be retained. (c) In restoring forces, the senior mechanic who is qualified as a welder may be restored to service when the services of a welder are required, without regard to seniority of other mechanics who are not qualified as welders. (d) Autogenous welders assigned to welding will perform any such work coming under the provisions of his craft that he is capable of performing, when not engaged in welding, and will be paid the mechanic's rate applicable to such work, seniority to govern. (e) To increase the number of welders, or fill a vacancy of same, in compliance with this rule, a mechanic will be selected from the craft which classification covers the preponderance of work he is expected to perform as a welder. (f) Members of wrecking crews, when engaged in wrecking service, may operate cutting torch in connection with the work of any or all crafts. (g) Insofar as it is practicable to do so, the work of operators of cutting torches will be confined to their respective crafts; when necessary in the interest of efficiency and economy, operators of cutting torches of the craft in which the work is being done. This will not be construed to prevent the use of the cutting torches by others than mechanics when cutting up scrap or equipment that is being retired." POSITION OF CARRIER: It is the position of the carrier that the contentions of the committee, as set forth in their ex parte statement of claim are without foundation under rules of the existing agreement between the parties. In their handling of this case on the property, the employes contended that the assignment of Boilermaker Welder Haynes to weld flat spots on the treads of wheels on diesel unit No. 1014 violated the controlling agreement. Justification of the carrier's position in this case becomes readily apparent when provisions of the agreement governing circumstances here present are applied to the facts. Paragraph (a) of the agreed upon Interpretation of Rule 29 of the agreement reads: "(a) Insofar as it is practicable to do so, the work of autogenous welders will be confined to their respective crafts; when necessary in the interest of efficiency and economy, welders of one craft may do the work of another craft, regardless of the fact there may be employed a welder or welders of the craft in which the work is being done." Claimant, who was not assigned as a machinist welder, was on duty and under pay at 6:00 A. M. when Boilermaker Welder Haynes reported for duty at Moberly to go to Missouri City. Claimant had already been on duty six (6) hours. It would have required between two and one-half (22) and three (3) hours to reach Missouri City and the disabled diesel unit; therefore, had claimant been sent, he would already have been on duty or enroute, between eight and one-half (8%) and nine (9) hours by the time he reached the point at which the work was required. His use certainly would not have been in the interest of efficiency. Had claimant been used, he would have been on duty or traveling from 12:00 Midnight, January 6, 1960, to 7:40 P. M., January 7, 1960; a total of nineteen (19) hours and forty (40) minutes continuously for which he would have been paid eight (8) hours straight time and eleven hours (11) and forty minutes (40) overtime. Boilermaker Welder Haynes, who was used, was on duty or enroute, a total of thirteen (13) hours and forty (40) minutes, for which he was paid eight (8) hours straight time and five (5) hours and forty (40) minutes overtime. It is, therefore, obvious that the use of Haynes was clearly necessary in the interest of efficiency and economy, and proper under the agreed upon Interpretation of Rule 29. The agreed upon Interpretation to Rule 29 is a part of the agreement between the parties and may not be set aside or ignored but must be recognized and given effect. Attention is directed to the fact that the carrier had two (2) machinists at the scene of the damage to diesel unit No. 1014, neither of whom proved to be qualified to perform required welding of flat spots on the wheels. C. Haynes was a welder of proven ability and in accordance with rights conferred upon the carrier by terms of the agreement, C. Haynes, Boilermaker-Welder, was sent to Missouri City, Missouri, to perform the necessary work "in the inter est of efficiency and economy." The carrier was faced with an emergency which involved a diesel unit tied up on the road between terminals. Prompt and positive action was required to cope with the situation. It is an indisputable fact that it was necessary in the interest of efficiency and economy for the carrier to assign a welder of proven ability and the rule clearly gave the carrier the right to assign a boilermaker welder to do the work of the machinist craft, regardless of the fact there may be employed a welder or welders of the machinist craft. The carrier affirmatively states that the substance of all matter referred to herein has been the subject of correspondence or discussion in conference between the representatives of the parties hereto. The contentions of the committee should be dismissed and the claim 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 waived right of appearance at hearing thereon. Here one of the units of a diesel locomotive became disabled and was detached from its train at Missouri City. Two machinists, neither of whom carrier in good faith believed had welding experience and ability, were sent there to repair said unit. They discovered that the treads of the wheels thereon had flat spots. Carrier, learning this, sent a welder-boilermaker, rather than a welder-machinist, from Moberly to Missouri City to perform the necessary welding. The former was off duty and the latter was working on his regular shift when the need for a welder became known to carrier. In support of the claim in favor of the machinist welder, petitioner relies on the language of Rules 55(a) and 29(a), while carrier relies on Interpretation (a) to Rule 29, which says that, "when necessary in the interest of efficiency and economy," carrier may use a welder of one craft to do the welding work of another craft. Carrier presents evidence, not successfully challenged by petitioner, that its action here saved carrier six hours of pay at the overtime rate. The Division then must find that said Interpretation, as applied to the facts of the instant case, controls here. Therefore, the claim cannot be upheld. It should be understood that nothing herein may be used to defeat the proper application of Machinist overtime rules to appropriate circumstances. Claim denied. AWARD NATIONAL RAILROAD ADJUSTMENT BOARD ATTEST: Harry J. Sassaman Executive Secretary Dated at Chicago, Illinois, this 15th day of November 1962. and, DISSENT OF LABOR MEMBERS TO AWARD NO. 4076 The majority is in error when they state: "In support of the claim in favor of the machinist welder, petitioner relies on the language of Rules 55 (a) and 29 (a), while carrier relies on Interpretation (a) to Rule 29, which says that, 'when necessary in the interest of efficiency and economy,' carrier may use a welder of one craft to do the welding work of another craft. Carrier presents evidence, not successfully challenged by petitioner, that its action here saved carrier six hours of pay at the overtime rate." "The Division then must find that said Interpretation, as applied to the fact of the instant case, controls here. Therefore, the claim cannot be upheld." The petitioner challenged the carrier's position as to efficiency and economy in "Second” of their rebuttal. The rate for machinist welder working and available would have been the same rate received by the boilermaker. Therefore, Rule 55 (a) and Rule 29 (a) apply. However, Interpretation to Rule 29 (a) has no bearing in this claim. The award should have been in the affirmative. We dissent. C. E. Bagwell T. E. Losey E. J. McDermott R. E. Stenzinger James B. Zink |