The Second Division consisted of the regular members and in
addition Referee P. M. Williams when award was rendered.
SYSTEM FEDERATION NO. 101, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: The Great Northern Railway Co_ hereinafter referred to as the carrier, regularly employs carmen at St. Cloud, Minnesota in its facility known as St. Cloud shops. Carman Sylvester Weiman, hereinafter referred to as the claimant, is regularly employed and assigned by carrier as a caiman in its St. Cloud u::ops.
Prior to December 31, 1957, carrier regularly employed carmen at St. Cloud,. Minnesota in its facility known as St. Cloud inspection yard and repair track who held seniority on a seniority roster known as St. Cloud inspection yards and repair track forces, which for seniority purposes is separate and apart from the St. Cloud Shops. Effective December 31, 1957, carrier furloughed all carmen working in the St. Cloud inspection yard and repair track holding seniority on the St. Cloud inspection yards and repair track forces' seniority roster.
Since the furlough of the yard forces, carrier maintains a small repair track within the confnes of St. Cloud shops to repair cars bad ordered at St. Cloud. On August 18 and 23, 1960 carrier's St. Cloud Shop Foreman, Fred Burke inspected the following freight cars in the St. Cloud train yard; UTLX 76982, GN 74578, GN 65385, GN 75016, GN 75516, GN 75745, GN 74624, GN 75366, GN 75574 and GN 74840, and bad ordered them for such defects as air brakes, doors and defective floors.
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 Organization contends that on August 18th and 23rd, 1960 the Carrier improperly assigned other than Carmen to inspect cars at its St. Cloud inspection yards and repair track.
The essential facts presented indicate that on December 31, 1957 the Carrier closed its St. Cloud Inspection Yards and Repair Track, furloughed all carmen and carmen helpers and left only a small working force of laborers to clean cars at that facility. The laborer's foreman, Fred Burk, previously had been the foreman at the closed facility; he reports to the Superintendent of the St. Cloud Car Shops which is the point to which the repair work previously performed at the St. Cloud Inspection Yards and Repair track had been transferred.
The claimant in the instant case is employed at St. Cloud Car Shops and has never held seniority at the closed Inspection Yard and Repair Track located approximately 11 miles away.
To support its contention the Organization offers 10 Thermofax copies of Bad Order Cards. One of these cards bears the signature of Fred Buck; two are purportedly signed by A1 Feldema, allegedly an Assistant Foreman of the St. Cloud Car Shops; the remaining cards are unsigned. Were it not for the fact that the parties have agreed to have this Award serve as the principle award for additional cases we would be disposed to say that the Organization has failed to sustain its burden of proving its contention, for we do not believe that the evidence proffered is sufficient for a sustaining Award; however, as will be pointed out later, other factors are involved therefore we will go into the merits of the case because the Carrier has not denied that, upon occasion, Assistant Car Forman Burk may inspect a car and/or a Bad Order Card on it.
The Carrier denies that an Assistant Foreman is performing Carmen's work and points to Rule 42(a), quoted above; to Rule 42(b) which says, "This rule does not prohibit Foremen in the exercise of their duties to perform work."; and to its Consolidated Code of Operating Rules #713, 713(A), 713(B), 713(C), which require all employes to inspect trains at every opportunity and to report defects immediately; to support its position. The evidence before us requires a finding that the Assistant Foreman could make any type of an inspection at the St. Cloud Inspection Yard and Repair Track because no carmen were employed at that point, per Rule 42 (a) and Awards No. 3270 and 3711 between the same parties as are before us; however the facts presented do not disclose that the Car Foreman or anyone else did more inspecting than would be allowed to him under Rule 42(b) and the practices enumerated in the quoted section of the Carrier's Code or Operating Rules.
We also believe that due to the Claimant's never having been employed at the Carrier's St. Cloud Inspection Yards and Repair Track that his seniority rights have not been damaged, nor could they be under the facts as presented, consequently his claim could be denied on the basis that, as to him, the contention of the Organization is moot.
For the reasons given above we find that the claim is without merit and should be denied.
The majority admits the essential fact that on December 31, 1957 the Carrier closed its St. Cloud Inspection Yards and Repair Track and furloughed all carmen but chooses to ignore the equally essential fact that the work (inspecting) previously performed by carmen was performed by other than carmen on August 18 and 23, 1960.
Further, the rrajority in using the Carrier's Code of Operating Rules in a vain attempt to support the erroneous findings, overlooks the fact that the collective bargaining agreement between the parties to a dispute takes precedence over the carrier's unilateral rules. Rule 96 prescribes that "Except as provided for under the special rules of each craft, the General Rules shall govern in all cases. No interpretation shall be placed upon these rules unless agreed to by Management and General Committee." 4386--i4 163
As to the stated belief of the majority that "due to the Claimant's never having been employed at the Carrier's St. Cloud Inspection Yards and Repair Track that his seniority rights have not been damaged . . . consequently his claim could be denied on the basis that, as to him, the contention of the Organization is moot," the answer is that the violation of the agreement deprived a carman of the work involved and there is no defense that permits such a contract violation. The claim on behalf of any particular individual or individuals is only incident thereto. In other Awards the Board has refused to recognize the defense that the wrong employe holding seniority under the violated agreement is making the claim. The carrier should have been required to comply with the provisions of the governing agreement.