Award No. 4597
Docket No. 4425
NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
addition Referee J. Harvey Daly when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 121, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
THE TEXAS AND PACIFIC RAILWAY COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That the Carrier violated the controlling Agreements when
they used a furloughed Carman from Mineola, Texas, to work a temporary vacancy October 11th, 12th, 13th, 14th, and 15th, 1961, on the
Fort Worth Belt Railway, Fort Worth, Texas.
2. That the Carrier be ordered to compensate the two Fort
Worth Belt Railway Carmen R. L. Chancellor at the time and one-half
rate for three eight hour days October 11th, 13th and 15th, 1961, and
J. W. Buck at the time and one-half rate for two eight hour days for
October 12th and 14th, 1961.
EMPLOYES' STATEMENT OF FACTS: The Texas and Pacific Railway
Company, hereinafter referred to as the carrier, controls and operates the Fort
Worth Belt Railway Company located at Fort Worth, Texas.
Under date of February 24, 1954, the International Association of Machinists and Brotherhood Railway Carmen of America, System Federation No. 121,
signed an agreement with the carrier, that the schedule agreement effective
on the Texas and Pacific Railway Company and Texas Pacific-Missouri Pacific
Terminal Road of New Orleans would apply to the three carmen and one
machinist helper on the Fort Worth Belt Railway Company effective March 1,
1954, under the conditions as set forth in the two Memorandum of Agreements.
Under date of October 10, 1961, a bulletin No. CD 10-10 was posted by the
carrier at various locations in shops and yards, including the Fort Worth Belt
Railway advertising a car inspector's job at Fort Worth Belt Railway working
Wednesday through Sunday with Monday and Tuesday designated as rest days,
hours of assignment 3:00 P. M. to 11:00 P. M. - temporary vacancy of R. L.
Chancellor. At the time this bulletin was posted, the carrier had a total of 12
carmen furloughed at Fort Worth, Texas, who were all listed on the Fort
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You conceded, in conference, that the joint agreement of January
24, 1962, my file T-32899, amending Rule 18 (h) of the Texas and
Pacific Agreement, would apply and govern in situations of this kind
arising since the date of that agreement; and it is clear and undisputed
that, in any event, there would be no basis for such a claim as the
present one since that date.
However, it seems just as clear to me that the rules in effect in
October of 1961, contemplated what was done here, as it is to both of
us that the rules now in effect contemplate it.
For the reasons stated above, the claims in this case are respectfully declined."
The case is comparable in this respect to the one covered by Second Division Award 3972.
4. Claim No. 2 is excessive in any event, because pay for time not worked,
if allowed at all, should be at the straight time rate rather than the overtime
or punitive or time and one-half rate.
See Second Division Award 3970 between the same parties.
For the reasons stated above, the carrier respectfully requests the Board
to dismiss or deny these claims in all respects.
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.
Parties to said dispute waived right of appearance at hearing thereon.
The Fort Worth Belt Railway Company is a separate corporation and
carrier from The Texas and Pacific Railway Company, although the latter does
own an interest in the Fort Worth Belt Railway Company and is also actively
interested in that railroad's management.
On February 24, 1954, The Texas and Pacific Railway Company and the
Fort Worth Railway Company signed two Memoranda of Agreements-both
effective March 1, 1954-with the International Association of Machinists and
the Brotherhood Railway Carmen of America. Those Agreements contain the
following pertinent provisions:
Organization's Exhibit A
"Effective March 1, 1954, no machinist helper nor carmen shall
be hired on the Fort Worth Belt Railway as such.
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Present incumbents of positions on the Fort Worth Belt Railway
Company shall have prior rights to positions on the Fort Worth Belt
Railway. In event vacancies or new positions on the Fort Worth Belt
are not bid in by prior right employes, said vacancies or new positions
shall be bulletined to employes on the Texas and Pacific seniority
roster at Fort Worth.
Present incumbents of positions on the Fort Worth Belt shall have
no seniority rights on positions on The Texas and Pacific Railway
Company.
Relief (including vacation relief) and temporary vacancies shall
be filled by men from The Texas and Pacific roster at Fort Worth. If
work at overtime rate is necessary and Texas and Pacific men are not
available at pro rata rate prior right employes on the Fort Worth Belt
in their respective classification shall be given preference to such
work."
Organization's Exhibit B
".
. . the schedule Agreement effective on The Texas and Pacific
Railway Company and Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans shall be applied to carmen and machinist helpers
on the Fort Worth Belt Railway Company, effective March 1, 1954, and
in addition, the following is agreed:
The position of working car foreman is changed to position of carman."
On October 10, 1961, the Carrier (The Texas and Pacific Railway Company) posted in its shops and yards and also at the Fort Worth Belt Railway
Company's facilities Bulletin No. CD 10-10 which advertised a Car Inspector's
position at the latter Company's facilities. The position was a temporary
vacancy-Wednesday through Sunday from 3:00 P. M. to 11:00 P. M. As no
Carrier Carman holding seniority at Fort Worth sought the Bulletined position,
the Carrier placed Otis Fleming, a furloughed Carrier Carman from Mineola,
who was working as a Carrier Carman at Fort Worth, in the Bulletined position on October 11, 12, 13, 14 and 15, 1961. Subsequently, a Carrier Carman
who held seniority at Fort Worth, bid on the temporary vacancy and was
assigned to it on October 16, 1961. Carman Fleming was then released.
In addition to the Memoranda cited above, the pertinent provisions of the
principal Labor Agreement Rules are as follows:
"RULE 12.
SENIORITY, TRANSFERS OR PROMOTIONS
Employes transferred from one point to another with a view of
accepting a permanent transfer, will, after thirty (30) days, lose their
seniority at the point they left, and their seniority at the point to
which transferred will begin on date of transfer, seniority to govern.
Employes will not be compelled to accept a permanent transfer to
another point."
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"RULE 18.
REDUCTION OF FORCES
(h) While forces are reduced, if men are needed at other points
furloughed men will be given preference to transfer, with privilege of
returning to home station when force is increased, such transfer to be
made without expense to the company. Seniority to govern."
"RULE 20.
SENIORITY
(a) Seniority of employes in each craft covered by this Agreement shall be confined to the point where each is employed."
"RULE 22.
GRIEVANCES
(b) Should an employe subject to this Agreement believe he has
been unjustly dealt with .... the case will be presented to the Foreman,
General Foreman and Master Mechanic in their respective order . . ."
The Organization's principal contentions are that the Carrier's action
violated Rule 20 (a) of the Labor Agreement as well as the pertinent provisions
of the Memorandum of Agreement, supra; and that the Carrier's action "denied
the prior right employes Carman R. L. Chancellor and J. W. Buck of the Fort
Worth Belt Railway five days' pay at the time and one-half rate which they
were rightfully entitled (sic) to in filling this temporary vacancy, since there
were no Fort Worth Carmen available".
The Carrier's principal contentions are that:
1) Rules 12 and 18 of the Labor Agreement support its (Carrier's)
action;
2) The Claimants are not Carrier employes; performed no service for
the Carrier; and have no contractual rights with the Carrier;
3) ". . . there were no furloughed Carmen from the Ft. Worth Belt
to work this assignment."
4) The claim should be dismissed because it was never presented to
Mechanical Foreman C. C. Dorsett of the Fort Worth Belt Railway
Company as required by Rule 22 (b) of the Labor Agreement;
5) The Claimants' seniority on the Fort Worth Belt Railway Company does not entitle them to demand overtime work from their
employer as against the right of a furloughed Carrier Carman.
The record establishes that the Organization violated
Rule 22 (b) of the
Labor Agreement when it improperly filed its initial grievance with General
Foreman J. T. Lunsford instead of with Mechanical Foreman C. C. Dorsett.
Accordingly, without any consideration as to the merits of the claim, we
must dismiss this claim on procedural grounds.
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AWARD
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: William B. Jones
Chairman
E. J. McDermott
Vice Chairman
Dated at Chicago, Illinois, this 9th day of December, 1964.