Docket No. SG-13539

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

(Supplemental)

Herbert J. Mesigh, Referee

PARTIES TO DISPUTE:

BROTHERHOOD OF RAILROAD SIGNALMEN

CENTRAL OF GEORGIA RAILWAY COMPANY

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen on the Central of Georgia Railway Company:

(a) That the Carrier violated the current Signalmen's Agreement of July 1, 1950, when on Tuesday, January 31, 1961, two employes from the Communications Department (Messrs. Moss and Dacus) were instructed or permitted to work one and one-half (12) hours each putting up a traffic signal pole at Tenth Avenue, Columbus, Georgia.

(b) That Signal Maintainer R. L. Teece, Phenix City, Alabama, be paid for three (3) hours at his overtime rate of pay account of this violation. (Carrier's File No.: SIG 464)

EMPLOYES' STATEMENT OF FACTS: The parties to this dispute, according to the record, are in agreement that the Carrier's signal maintenance forces required a wooden pole to replace an existing pole used to support a street blinker light at an intersection in the Columbus, Georgia Yard. The parties also agree that Carrier's Signal Supervisor arranged to have the pole transported to the site, where used, by two Communications Department employes who are not covered by the Signalmen's Agreement.

The Carrier maintains that one Signal Maintainer and one Traveling Signal Maintainer were waiting at the installation site to install the pole. The Carrier also maintains that it instructed Signal Maintainer Andrews to operate the truck's rigging which is designed to set poles but, if he desired, he would be at liberty to request one of the communication's men to manipulate the equipment on the truck to raise the pole. The Carrier said it instructed Andrews that if such request was made, he should stand by the communications worker and at least hold his hand on his shoulder while the pole was being raised. The Carrier does not elaborate what Andrews should at most have done if the communications employes operated the truck to raise the pole.

The record shows that General Chairman Estes maintained all work in connection with transporting and installing the pole should have been done by signal forces and that the Carrier should pay a penalty for violating the Agreement. The record also shows that the Carrier replied to General Chair

man Estes that if this was his position, then charges would be preferred against Andrews for failure to comply with instructions. The Carrier does not state why it thinks Signal Maintainer Andrews violated its instructions because according to the Carrier, the Signal Supervisor told him to feel at liberty to request the communications employes to perform the work of raising the pole. However, by making such a threat, the Carrier has demonstrated that it uses coercion to try to have claims dropped against it.

In view of the Carrier's violation, General Chairman J. R. Estes, Jr., filed a claim on behalf of Signal Maintainer, R. L. Teese, with Superintendent W. M. Whitehurst on February 6, 1961. The initial claim is attached hereto as Brotherhood's Exhibit No. 1.

Superintendent Whitehurst and General Chairman Estes discussed the claim on March 10, 1961, and, on March 24, 1961, Superintendent Whitehurst wrote the General Chairman a letter denying the claim. The letter also threatened Signal Maintainer Andrews in the event the General Chairman persisted in his view that the Carrier had violated the Agreement. The letter of denial is Brotherhood's Exhibit No. 2.

In a letter dated March 25, 1961, General Chairman Estes appealed Superintendent Whitehurst's decision to Chief Engineer J. B. McKerley. This appeal letter is attached as Brotherhood's Exhibit No. 3.

Mr. McKerley and General Chairman Estes discussed the claim on May 26, 1961, and on May 30, 1961, Chief Engineer McKerley wrote General Chairman Estes a letter of denial which is attached hereto as Brotherhood's Exhibit No. 4.

In a letter dated June 3, 1961, General Chairman Estes appealed Chief Engineer McKerley's decision to Director of Labor Relations, W. J. Collins. The appeal letter is attached as Brotherhood's Exhibit No. 5.

The General Chairman and Carrier discussed this claim in conference on July 17, 1961, and a Memorandum of Conference was subsequently furnished the General Chairman denying the claim. The Memorandum of Conference is attached as Brotherhood's Exhibit No. 6.

As indicated above, three conferences were held between the General Chairman and various Carrier officials concerning this dispute during the time it was being progressed on the property.

As evidenced by the cited correspondence, this claim was filed and handled in the usual and proper manner by the Brotherhood up to and including the highest officer of the Carrier designated to handle such disputes, without securing a satisfactory settlement.

There is an agreement in effect between the parties to this dispute bearing an effective date of July 1, 1950, as amended, which is by reference thereto made a part of the record in this dispute.

POSITION OF EMPLOYES: It is the position of the Brotherhood that the Carrier violated the current Signalmen's Agreement when, on January 31, 1961, it required two employes not covered by the Signalmen's Agreement to transport signal material to the site where it was to be immediately used, and then required or permitted these employes to help install the signal material in question.

The Scope Rule of the effective Agreement is reproduced, as follows:

"This agreement covers the rates of pay, hours of service and working conditions of all employes, classified herein, engaged in the construction, installation, repairing, inspecting, testing and maintenance of all interlocking systems and devices; signals and signal systems; wayside devices and equipment for train stop and train control; car retarder and car retarder systems; centralized traffic control systems; operative gate mechanism; operative highway crossing protective devices; spring switch mechanism; electric switch targets together with wires and cables; iron train order signals; signal cantilevers; power or other lines, with poles, fixtures, conduit systems, transformers, arrestors and wires or cables pertaining to interlocking and signal systems; interlocking and signal lighting; storage battery plants with charging outfits and switch board equipment; sub stations, current generating and compressed air plants, exclusively used by the Signal Department, pipe lines and connections used for Signal Department purposes; carpenter, concrete and form work in connection with signal and interlocking systems (except that required in buildings, towers and signal bridges); together with all appurtenances pertaining to the above named systems and devices, as well as any other work generally recognized as signal work."

There is no question between the parties, according to the record, about whether or not the pole in question was for use in the Carrier's signal system. In Brotherhood's Exhibit No. 2, Carrier said:

"A creosoted pine line pole was required by signal maintenance forces to replace one of the existing poles used to support a street blinker light * * (Emphasis ours.)

There is also no question that Carrier required two employes not covered by the Signalmen's Agreement to transport the pole to the site where it was immediately used. In Brotherhood's Exhibit No. 2, Carrier said:

"Mr. L. J. Butler, Supervisor of Communications and Signals, arranged for two men in the Communications Section to load a pole from the Company's pole stock at Columbus, on a pole trailer, and haul the pole to the site of the work."

The above is a clear cut violation of the agreement. The Scope Rule makes it clear that employes covered by the Signalmen's Agreement are to perform all work in connection with the Carrier's signal system. The Carrier, in Brotherhood's Exhibit No. 2, took the arbitrary position that it could have anyone deliver the pole to the site where it was immediately used. In that Exhibit, Carrier said:

the Railway could arrange to deliver this material by any means it saw fit, even to the extent of having it delivered by taxicab."

The Brotherhood maintains that the above Carrier's statement is not true. This Board, in Third Division Award 5046, said:

"But work in connection with the movement of such material from a warehouse or material yard to a signal construction or maintenance job for immediate use on such job, is the exclusive work of signalmen." (Emphasis ours.)

This is exactly what was involved in part in the instant dispute. The material, according to the Carrier's own statement, was moved from a material yard to the site of a maintenance job where it was immediately used. Therefore, this Board has already established the principle that such work is exclusively that of Signalmen.

This Division, in sustaining Award 10051, said:

"Here is one instance relocation of signal equipment was involved, in the other case the signal equipment was being delivered along the Carrier's line for use in the Signal System. Indeed, the Carrier admitted the work in question was signalmen's work. Under such circumstances, the work involved was the exclusive work of the Signalmen."

From the foregoing, it is apparent that the Carrier violated the Signalmen's Agreement when it required two employes not covered by the Signalmen's Agreement to deliver signal material to a maintenance job for immediate use on the job.

Following this, the Carrier further violated the Agreement by permitting or requiring employes not covered by the Signalmen's Agreement to assist the signal force to install the signal material.

The Carrier makes much of its contention that Signal Maintainer Andrews did not follow instructions and permitted the communication workers to perform work in connection with setting the pole. However, the Carrier's correspondence attached hereto as Exhibits definitely prove that the Carrier condoned the communication workers performing signal work at the site of the maintenance job. In our Exhibit No. 2, Carrier said:

"Supv. Butler instructed Signal Maintainer Andrews to operate the truck rigging in raising the pole; however, if he desired, he would be at liberty to request one of the communication men to actually manipulate the equipment on this truck for raising the pole, but if such was done, then Mr. Andrews should stand by this communication employe and at least hold his hand on the communications employe's shoulder while the manipulation was taking place, for Mr. Andrews must, without question, handle this work in such a manner that there could be no possibility of any claim being entered under the pretext that employes other than signal forces were performing signal work." (Emphasis ours.)

The above Carrier's statement bears close scrutiny as it points out several important facts surrounding this dispute. First, the Carrier's Signal Supervisor made it clear that Signal Maintainer Andrews would be at liberty to request a communication's employe to operate the truck rigging. The Supervisor knew that the truck was assigned to the communications employes and if other employes operated it, a claim would be progressed by those employes. Too, it is the responsibility of the Carrier to police the Agreement.

In sustaining Award 6102, this Division said:

"It is the Carrier's duty to properly apply an Agreement."

In view of this, it is evident that the Carrier's Signal Supervisor was guilty of neglect of duty when he told the Signal Maintainer to feel at liberty to request other employes to perform signal work.

Second, by requesting the Signal Maintainer to at least hold his hand on the communication worker's shoulder while he manipulated the truck rigging, the Carrier admitted that it knew the work in question was signal work. We see no place in the Scope Rule where the Carrier may divert work covered by the Scope Rule to other employes by merely having a signal employe hold his hand on the other employe's shoulder. It wouldn't legalize the violation if the employes held hands. There are no such provisions in the Agreement.

As pointed out to the Carrier in conference, one of the communication employes told General Chairman Estes that he was instructed to set the pole. The Carrier's threat to discipline Signal Maintainer Andrews made in Brotherhood's Exhibit No. 2 is not worthy of comment but does show that this Carrier threatens its employes account of the Brotherhood progressing claims.

This is not new on this property, as evidenced by other claims now pending before this Division. One claim, identified as Docket No. SG-13084, has attached as Brotherhood's Exhibit No. 1, a statement by an employe that he was told by a signal supervisor that if Mr. Estes didn't “quit handling all those CLAIMS against the Carrier that his job as Relay Repairman would be abolished." The record in that Docket shows that Mr. Estes' Relay Repairman job was subsequently abolished. Therefore, we assume that making threats against its employes is the historical custom on this Carrier.

The Carrier was inconsistent in its statements while this claim was being progressed on the property. For example, in Brotherhood's Exhibit No. 2, it said:

"Supv. Butler instructed Signal Maintainer Andrews to operate the truck rigging in raising the pole; however, if he desired, he would be at liberty to request one of the communication men to actually manipulate the equipment on this truck, * * " (Emphasis ours.)

*

We ask the Board to compare the above statement with the following statement made by the Carrier in Brotherhood's Exhibit No. 6.

Supervisor Butler instructed Mr. Andrews to operate the truck rigging in raising the pole, that if he so desired he would be at liberty to get one of the Communications men to show him how to manipulate the equipment on this truck for raising the pole,

(Emphasis ours.)

It is apparent that the two statements by the Carrier above made about the identical situation have an altogether meaning and are, to say the least, contradictory. Too, it will be noted that further in our Exhibit No. 6 the Carrier said Mr. Andrews had previously been shown how to operate the equipment. Then, if this is true, why did the Carrier tell Mr. Andrews to feel at liberty to ask to be shown how to operate the equipment.

The truth is that the Carrier assigned two men not covered by the Signalmen's Agreement to transport a pole for a signal maintenance job to the site of the job, and, according to a statement by one of these employes, instructed them to set the pole. Also, Brotherhood's Exhibit No. 6 shows that the communication's employes "did perform some of the tamping of the soil in I this hole around the pole" which the Carrier claims was contrary to its instructions. However, the fact remains, and the Carrier does not deny, that the Communication's employes were required to transport the pole to the maintenance job site. And, the fact remains, substantiated by the record herein, that these employes set the pole and helped tamp earth around the pole.