The Second Division consisted of the regular members and in
addition Referee D. Emmett Ferguson when award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
Award 6695 (rendered with the assistance of Referee Leiserson) discussed in ,the foregoing quotation from the Opinion of the Board in Third. Division Award 6856, is one out of more than forty awards rendered by the Adjustment Board in cases involving the same question as here, and the only one taking the unrealistic and grossly erroneous position outlined therein. In other words, of the more than forty awards rendered all but Award 6695 have been completely uniform and consistent in holding that a carrier has the right to stagger its forces to perform operations in a sevenday service under the 40-Hour Week Agreement where it is necessary in the operation of the railroad that it do so. The more than forty awards so holding represent the well-reasoned opinion of seven referees.
For the reasons fully detailed and discussed in this submission, there is: no basis for these claims and accordingly they must be 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.
The dispute herein is over a conclusion of fact; not over the facts: themselves. For 12 years the repair track at Hoisington, Kansas, did not work on Sunday. Then in April, 1956 two jobs were established on the repair track to work Sundays. About one year later the entire repair track operation was closed.
The carrier defends its conclusion to keep the repair track open on. Sunday as an operational necessity, by showing delays in inspection of trains: caused by insufficient inspector forces, and also delays in repairs to cars because there was no one on duty on Sunday to make the repairs. In addition;. it has shown that some repairs were made on Sundays by calling out repairman at punitive rate. Also shown is the result of a study of Sunday operations after the change, to the effect that on the only regular train om the first trick, (No. 61) the delay in inspection was cut 30 minutes bygiving the one car inspector the assistance of men from the repair track.
From a study of the Forty hour week agreement and the awards applying it, we are of the opinion that Sunday work per se is not forbidden, but is limited to necessary work which may change from time to time varying with operational requirements. 3094-27 678
The word "necessary" is the key to the present dispute. If a repair track crew was necessary on Sunday, the carrier was within its rights in establishing it. The reverse of the proposition is equally true.
The most significant fact before us is that in March 1957, the repair track at Hoisington, Kansas, was closed. This, coupled with the evidence of the number of loads and empties handled and the improved inspection time, leads us to the conclusion that this change in operation was in the nature of an experiment, to improve operating efficiency and reduce costs, both of which are always necessary to successful operations as a whole, but in individual situations may offer alternatives thereby obviating the necessity of a single choice.
Our conclusion of fact is, that "the amount or nature of traffic or business and seasonal fiuctuations" has not been shown to be sufficient, to constitute "Sunday work that may be necessary".
Claim 2. (a) The question is moot in view of the present fact that the repair track is closed. The claim is dismissed.