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April 12, 1993



The opinion of the court was delivered by: JAMES B. ZAGEL

The Brotherhood sued the Railroad to enforce an arbitration award of the Adjustment Board. The Railroad says the Brotherhood is trying to expand the scope of the award beyond the two employees who were the subject of the proceeding to all Brotherhood member-employees. The Adjustment Board dealt with curve oiling on the Railroad's track between Springfield, Missouri, and Hoxie, Arkansas, and ordered that the work be performed by employees represented by the Brotherhood. The Brotherhood wants this rule extended to more of the Railroad's track. *fn1"

 The Railroad says this case involves a question of scope or interpretation of an Award, a matter outside the court's jurisdiction. The Railroad contends that because such a dispute could also be resolved by interpretation of the collective bargaining agreements, it is, in the jargon of the Railway Labor Act, a minor dispute that must be arbitrated, not tried. The Brotherhood says the Award is merely ambiguous and courts may resolve ambiguities. Indeed, the Brotherhood says the Award construed the Scope Rule in the Frisco agreement as giving curve oiling work to Brotherhood employees, and that the Railway refuses to abide by this construction. The facts are that from Springfield to Hoxie the Brotherhood does curve oiling, but on other portions of the former Frisco track it may not always do so.

 The context of the dispute is worth a few words. Rails are greased at the curves to reduce wear. Friction and pressure on the rails are greatest at curves because of centrifugal force. The railroads installed fixed track oiling devices only at high degree curves. These trackside oilers are, and will be, installed and maintained by Brotherhood members. As time passed mobil tracks were invented and installed on locomotives so that all curves could be lubricated. This did not work on low-traffic track and eventually someone figured out how to put the mobil oiler on a hyrail pickup truck. In 1987 the Railway assigned a supervisor to oil the curves by using this truck as he inspected track in his assigned area from Springfield to Hoxie. The Brotherhood disputed the assignment and the Railway responded that this was a new method of work never before done by Brotherhood personnel.

 Eventually the matter was taken to the Board with the Brotherhood claiming that the work was reserved under the agreement to Brotherhood members and, if so, whether two members ought to be compensated for not being assigned this work. The request for compensation was denied because the employees were fully employed during the relevant time period.

 The Board decided the matter. The issue is what did it decide. The Board stated the claim this way:

(1) The Agreement was violated when the Carrier assigned Track Supervisor L. Prichard instead of Foreman H. L. Woodward and Trackman T. M. Freeman to perform curve oiling work beginning February 9, 1987 (System File B-1118-1/EMWC 87-4-291).
(2) As a consequence of the aforesaid violation: '. . . we request that Mr. W. L. Woodward be paid at the foreman rate of pay and T. M. Freeman be paid at the trackman rate of pay for 8 hours each for each day that Track Supervisor Prichard works from February 9, 1987 and continue to be paid for as long as the above violation continues.'

 Then it stated:

It is true, as the Carrier points out, that the Scope Rule of the Agreement does not make express mention of the work at issue. It is general in nature, and therefore, it was the Organization's burden to show that the work was reserved to its employees by custom or past practice. Our review of the record reveals that Carrier never refuted the Organizations contentions regarding historical practice. To the contrary, Carrier on the property acknowledged that track lubrication has been performed by BMWE employees in the past, though only on high degree curves because of the mechanical difficulties involved in covering the entire system using the old technology. To that extent we find that the Organization has met its prima facie burden of proof.
The question becomes, then, whether a change in the technology justifies the performance of the disputed work by supervisory personnel. We think not. The purpose of the work and the reason for doing it remain the same; it is the manner of method of performance that has been affected, and it was the Carrier's burden to show as an affirmative matter that it was justified in assigning such work to supervisory
employees not covered by the Agreement. We find neither Agreement support nor Board precedent to substantiate ...

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