The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
SYSTEM FEDERATION NO. 20, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
1. That the Elgin, Joliet and Eastern Railway Company violated the current working agreement when, instead of assigning carmen Mr. F. Renzo and Mr. H. Hielscher to perform carmen's work, carrier officials performed carmen's work of rerailing EJ&E 32622 on October 18, 1964.
EMPLOYES' STATEMENT OF FACTS: The Elgin, Joliet & Eastern Railway Company, hereinafter referred to as the carrier, maintains a large repair track and inspection point at Kirk Yard, Gary, Indiana, where it employs a work force of a substantial number of carmen, two of whom are Mr. Frank Renzo and Mr. H. Hielscher, hereinafter referred to as the claimants. On October 18, 1964, EJ&E 32622 was derailed and rerailed by carrier officials Mr. H. Paletz and Mr. B. McGee, by blocking and pulling with engine 403 at about 1:03 P. M., CST. This work of rerailing cars belongs to the carmen's craft and was improperly performed by carrier officials.
The Agreement reissued June 15, 1950, as revised, is controlling. This -dispute has been handled with all officers of the carrier designated to handle disputes, including the highest officer, all of whom have declined to adjust it.
POSITION OF EMPLOYES: It is respectfully submitted that the provisions of Rule 131 of the current agreement is controlling:
Oral hearing is waived unless requested by the Organization in which event the Carrier reserves its right to be heard.
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.
Petitioner's complaint is that two of Carrier's officials, Assistant Superintendent Paletz and Trainmaster Magee, assisted a yard engine crew in rerailing a car at the Gary Mill Yard. It does not object to the use of the yard crew in this instance but insists that carmen and not the two oficials should have been called to assist the crew.
In line with their regular duties, Paletz and Magee went to the scene of the derailment and determined that the car could be rerailed by the yard crew without outside help. There is insufficient evidence to establish that Paletz and Magee did more than act in their normal supervisory capacities in the rerailing operation. Neither Mr. Fonseca, a carman whose statement is emphasized by Petitioner, nor any other witness has presented a sufficiently detailed account to show exactly what duties the oficials actually performed in connection with the rerailing of the car. The evidence is not enough, in the face of Carrier's denials and explanations, to establish the claim.
The referee stated in his findings that " * * * The evidence is not enough, in the face of Carrier's denials and explanations, to establish the claim.
Carrier's Exhibit J is a time slip from three crew members for two hours' pay (approved for payment by the foreman) for carrying blocking for the officials named in the dispute (not for rerailing cars). The actual blocking, setting and securing the rerailers and the cable used to pull the car properly anchored to the car and locomotive requires some dexterity. Employes' Exhibit B is a statement from a reliable employe who stated that he was an eyewitness of the two officials rerailing the car involved in this dispute.
We think that the referee failed to properly evaluate the evidence presented in this case, causing Award No. 5226 to be palpably erroneous.