The Second Division consisted of the regular members and in
addition Referee Harry Abrahams when award was rendered.
EMPLOYES' STATEMENT OF FACTS: Mr. John R. Anderson, hereinafter referred to as the claimant, was employed as a Machinist by the Chicago and North Western Railway Company, hereinafter referred to as the carrier at Clinton, Iowa.
The Car Shops Superintendent, Mr. R. E. Powers, suspended the claimant from service at the close of his shift on September 2, 1964. On September 3, 1964, Car Shops Superintendent R. E. Powers charged the Claimant as follows:
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.
Production wanted by Carrier was 9 axles per hour. Under the record it was not excessive and could be produced without over-working.
The Referee and Carrier members of this Division constituting the majority are in error in their Award No. 5160 when they base their conclusions solely on the following:
The Referee's conclusions supported by the Carrier members are not based on facts projected in the record, nor on the controlling agreement rules, with a complete obvious disregard of the hearing transcript.
In this transcript, the employe's representative requested that .the Carrier's witness produce and insert his alleged time study and motion study records, along with the alleged production records of other employes. The record is very clear as to the insistence of the Union Representative that specific records be made available to them, even up to and including the General Chairman's letter to Mr. T. M. VanPatten, Director of Personnel, on June 3, 1965. This letter still requested that the Carrier produce documentary evidence to support their allegations and self-serving assertions.
The fact that there is no probative evidence in the entire record of the Carrier, including the record of the. transcript of the investigation to support the Carrier's actions, makes it reasonable to assert that no records exist. Therefore, they failed in their burden of proof that this instant claimant had violated anything or was guilty of anything, including the violation of the shop craft rules.
The majority by their actions here has caused the Second Division to exceed its authority in making this Award. They have subscribed to piece work when no such rule exists in the collective bargaining agreement, and have apparently ignored the controlling rule which deals with the basic day for an employe under the shop craft agreement.
There is no mention in the above rules of piece work or production limits of .any kind. Therefore, the Referee and the Carrier members were improper to go outside of the agreement in order to make this impeachable judgment. It is well established by the courts and the National Railroad Adjustment Board as a whole that the task of the NRAB is ,to construe and apply agreements, not to rewrite them - as in this instant award.