SYSTEM FEDERATION NO. 103, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. 1. O. (Carmen)
The contention of the employes that this work is carmen's work on the basis it has been performed by carmen is of no significance or importance, in view of the agreement rules in effect between the parties and, this board has repeatedly held that past practice does not change an agreement rule. The contention of the employes that this is carman's work on the basis that it has been performed by carmen, if sustained, would actually distort the real intent and, meaning of the phrase "and all other work generally recognized as carmen's work" or change the language to read "and all other work performed .by carmen".
The work performed by the trainmen in the Corn Products Yard was not inspection or repairs to the cars but was work which the First Division and this Division has held as being work incidental to the work of train service -employes.
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 Corn Products Refining Company owns and operates a train yard at Argo, Illinois, which is served by several railroads, including the Carrier. The Carrier's switch engine crew places cars on the receiving tracks of the Corn Products yard. All switching within the plant is performed by a Corn Products locomotive which also places the cars on the outbound tracks. The Carrier's switch engine crew then picks the cars up and brings them to the Carrier's Argo train yard, a distance of about one-half mile, where the usual inspections and necessary repairs are made by the Carrier's carmen.
On certain specified days between March 28, 1958, and July 19, 1958, switchmen belonging to the Carrier's engine crew coupled the air hoses and 4286-12 7 C)8
made air tests on cars which has been stored at the outbound tracks in the Corn Products yard so that they could be moved to the Carrier's Argo yard.
The Claimants, S. Consonza, J. DiGangi, J. Liber, and C. Santoria, who are employed as carmen at the Carrier's Argo yard filed the instant grievance in which they contended that the Carrier violated the applicable labor agreement when it assigned the above described coupling of air hoses and making of air tests to switchmen. They requested compensation in the amount of four hours each at the pro rata rate for each alleged violation. The Carrier denied the grievance.
We are asked to decide in this case whether the coupling of air hoses and the making of air tests in the above described instances involved work exclusively belonging to the carmen's craft. For the reasons hereinafter stated, we are of the opinion that the answer is in the negative.
1. Substantially the same legal question was submitted to us for adjudication by the Carrier and the Organization in Docket 3862. In that case, the same labor agreement was also involved. We denied the carmen's claim in our Award 4145 primarily on the ground that "in general, in the absence of specific agreement, the work of coupling and uncoupling air hose and testing air has been held exclusively reserved to carmen only when performed as an incident to their regular maintenance and repair duties and inspection incident thereto." We noted that our ruling was in accord with numerous other Awards of this Board as well as with the detailed Award of Referee Geo. Cheney, dated August 1, 1951, and the decision of the U. S. District Court, Western District of Pennsylvania, in the matter of Shipley v. Pittsburgh & L. E. R. Co., 83 F. Supp. 722 (1949). We have carefully re-examined our prior Award but have found nothing in the record which would justify a different ruling. Accordingly, we adhere to said Award. See: Award 3991 of the Second Division.
Applying the above principle to this case, we have reached the following conclusions:
Rule 154 of the labor agreement contains a specific description of various tasks coming under the jurisdiction of the carmen's craft. However, coupling of air hoses or making air tests incidental to car movements is not specifically listed: The Rule also provides that all other work not explicitly enumerated therein but generally recognized as carmen's work belongs to their craft. The record reveals that carmen have coupled air hoses and made air tests at the Corn Products yard. Yet this fact is of no decisive significance unless they have performed such work exclusively. See: Awards 1110 and 4259 of the Second Division. The available evidence does not permit such a finding. On the contrary, the evidence on the record considered as a whole convincingly demonstrates that carmen as well as trainmen have traditionally performed said work. Hence, Rule 154 does not support the instant claim.
2. The Claimants also rely on a bulletin posted by the Carrier on December 20, 1940, in which bids were invited for a job consisting of "inspecting and repairing cars in Argo Yard * * * and Corn Products Refg. Co." The bulletin does not mention coupling of air hoses or making air tests incidental to train movements and we do not construe it as including such work. This conclusion is corroborated by the uncontroverted fact that carmen performed no coupling functions at the Corn Products yard until September, 1943, or for a period of about 23/4 years after the posting of the bulletin.
Furthermore, the Claimants have referred us to several instances in which the Carrier allegedly satisfied claims similar to the one here in dispute. The 4286-13 799
record indicates that the factual situations underlying the previous settlements are distinguishable from the one before us. In addition, the Carrier has called our attention to certain instances in which it has denied similar claims. Thus, the available evidence is inconclusive to make a finding to the effect that the parties entered into a specific understanding outside of the labor agreement in which they agreed that the work here in dispute exclusively belongs to carmen.
In summary, we are of the opinion that, on the basis of the facts underlying this case, the Carrier did not violate the labor or any other agreement between it and the Organization.
The majority states "We are asked to decide in this case whether the coupling of air hoses and the making of air tests in the above-described instances involved work exclusively belonging to the carmen's craft." The question asked was whether the work performed in certain described instances on specific dates was wrongfully transferred from carmen to switchmen.
The majority ignores the carrier's admission that the work at Corn Products Company (Argo Yard) was carmen's work and would have been performed by carmen as usual if they had not been doing other work at Argo Yard. The record reveals that in the past when the carrier assigned other than carmen to do this type of work the carrier admitted that it was wrong in doing so and returned the work to the carmen and compensated them for assigning their work to others. The record further shows conclusively that the factual situations underlying previous settlements are not distinguishable from the facts underlying the present case.
Under the circumstances of this case and the available evidence the decision of the majority should have been in the affirmative and the carrier should have been ordered to live up to the previous settlements made in regard to this type of work.