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 carman in its St. Cloud shops.
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 yards 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 confines of St. Cloud shops to repair cars bad ordered at St. Cloud. On January 22, 1961 and March 1, 1961 carrier's St. Cloud shop foremen inspected the following freight cars in the St. Cloud train yards; FGEX 38896 and GN 23507 and bad ordered them for such defects as train line bracket broken and truck bolster worn.
Similar claims on other carriers have been denied by this Board in Awards 2643, 2916, 2959 and 3304, and the right of foremen to perform mechanics' work where no mechanics were employed was upheld.
THE CLAIM OF THE ORGANIZATION, THEREFORE,
IS WITHOUT MERIT FOR THE FOLLOWING REASONS:
1. It is the fundamental right of the carrier to assign the work in question in whatever manner is necessary or desirable, unless the power to make such decisions has been limited by law or by some clear and unmistakable language in a collective bargaining agreement.
2. The organization bears the burden of proving that it has secured the exclusive right to inspect and bad order freight cars at the St. Cloud train yard by clear and unambiguous contractual language.
3. The only contractual language cited by the organization to support its demands is contained in rules 42 (a) and 83.
4. Rule 83 merely defines carman's work and does not specify who may perform it.
5. Rule 42(b) allows foremen to perform work in the proper exercise of their supervisory duties, and this Board has recognized in previous awards that inspection of equipment is such work.
6. Even if the work involved in this case were ordinarily reserved exclusively to carman mechanics, rule 42(a) specifically allows a working foreman to perform such work at a point such as St. Cloud train yard where no mechanics are presently employed, in accordance with Awards 3270 and 3711 on this property, and others.
7. Even if this Board found a violation of some rule or agreement in this case, there is no basis for the penalty demanded by the Organization.
For the foregoing reasons, the carrier respectfully requests that the claims ~of the employes be denied.
FTINDINGB: 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 January 22 and March 1, 1961 the carrier's foremen inspected cars at its St. Cloud Yards. In support of its contention the organization submitted 2 photo copies of Bad Order Cards. With the exception of a difference in the dates and number of Bad Order Cards attached, the pertinent facts in the instant case are identical to those found in Award 4386.
the reason stated therein we find that the claim herein 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 January 22, 1961 and March 1, 1961.
Further, the majority 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."
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.