NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee David Dolnick when award was rendered.
DISPUTE: CLAIM OF EMPLOYES: 1. That the Elgin, Joliet & Eastern Railway Company violated the current working agreement when the carrier official, Foreman A. D. Stephenson performed carmen's work on November 20, 1964 instead of assigning carman Mr. A. DiSalvo to perform this work.
2. That the Elgin, Joliet & Eastern Railway Company be ordered to compensate carman Mr. A. DiSalvo for four (4) hours at the punitive rate account the violation.
EMPLOYES' STATEMENT OF FACTS: The Elgin, Joliet & Eastern Railway Company, hereinafter referred to as the Carrier, maintains a Steel Car Shop at Joliet, Illinois, where it employs a large work force of substantial number of carmen, one of whom is Mr. A. DiSalvo, hereinafter referred to as the claimant.
On November 20, 1964, car foreman Mr. H. D. Stephenson performed work properly belonging to the carmen's craft of spreading sides on E.J.&E. Gondola car #33695, hooked up gondola car top cord and side straightener with the use of overhead crane and spread the sides of the car mentioned in order to install removed End back in place. This official was not instructing anyone at the time, but performed this work by himself. Upon being advised at the time by the Local Chairman, Mr. Peter Stipanovich, that he was violating the provisions of the working agreement in performing work which was not his by contract, Foreman Stephenson replied that "he did not think he had any carmen members who could perform this simple work."
The work outlined above as being performed on November 20, 1964, by carrier official, is work properly belong to the carmen's craft by contract, and carman DiSalvo should have been assigned to perform this work. He was available for the work and qualified to perform the work but the carrier's official performed it instead.
This dispute has been handled with all officers of the carrier designated to handle disputes, including the highest officer, all of whom declined to adjust it.
POSITION OF EMPLOYES: It is respectfully submitted that Carmen's Special Rule No. 127 is controlling in this specific case and claim:
exercise of their duties. Referee Howard A. Johnson, in rendering Second Division Award No. 4086 found as follows:
Award 4086 was rendered in a dispute between the Missouri Pacific Railroad Company and its Electrical Workers. The part of Rule 26 of the Missouri Pacific Agreement concerning foremen is identical to Rule 30 of this Carrier's agreement with the Carmen's Organization. In the instant dispute, the Carmen did not show that Foreman Stephenson was not performing the disputed work in the exercise of his duties.
Without prejudice to the Carrier's primary positions that the agreement was not violated, it is noted that part 2 of the Organization's claim requests compensation of four hours at the punitive rate. Your Board has ruled on numerous occasions that proper payment for work not performed is at the straight-time rate. (See Awards Nos. 3177-3272-3273-3256-3405-3406)
Furthermore, Part 2 of the claim is improper in that it presumes the Carrier would have called an off-duty Carmen to perform the few minutes of Carman's work which Foreman Stephenson performed on the claim date. If Mr. Stephenson had not considered this as work which he could properly perform, he certainly would have assigned it to one of the qualified Carmen who were on duty at the time in the Steel Car Shop. Under no circumstances would an off-duty Carman have been called and been paid four hours pay when a readily available on-duty Carman could have done it without additional compensation.
The Carrier respectfully requests an award denying this claim in it; entirety.
All information and data contained herein has been discussed with the Organization either in conference or by correspondence. Any allegation to the contrary which the Organization may proffer in its rebuttal is without foundation. (Exhibits not reproduced)
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.
Foreman Stephenson performed a small amount of carman's work. The Carrier's position is that he properly performed it in connection with instruction of a carman, in accordance with Rule 30, which after providing that none but mechanics or apprentices shall perform mechanics' work except foremen at points where no mechanics are employed, adds in the second paragraph:
It is generally understood that a foreman, while instructing men in work, will from time to time do some minor part of work, in many instances a person has to be shown exactly the operation.
"None but mechanics or apprentices regularly employed as such shall do mechanics' work as per the special rules of each craft except foremen at points where no mechanics are employed.
"However, craft work performed by foremen or other supervisory employes employed on a shift shall not in the aggregate exceed 20 hours a week for one shift, 40 hours a week for two shifts, or 60 hours for all shifts.
"If any question arises as to the amount of craft work being performed by supervisory employes, a joint check shall be made at the request of the General Chairmen of the organizations affected. Any
Article III does not purport to revoke or supersede Rule 30. It merely supplements the Rule by placing a limit on the amount of craft work to be performed by supervisory employes at points where no mechanics are employed; but it makes no reference to the provision of Rule 30 which recognizes the right of foremen to perform work in the exercise of their duties, and contains no provision inconsistent therewith. All rules must be read together and be given full effect except as prevented by inconsistencies. Consequently, assuming but not deciding, that the issue whether Rule 30 was superseded by Article III of the September 25, 1964 Agreement is properly before this Board, the contention cannot be sustained.
The claim was that the carrier violated Rule 127 of the current agrr c.. ment on November 20, 1964. Rule 127 reads as follows:
When Car Foreman H. D. Stephenson performed work covered by the above-quoted rule the Local Chairman's letter dated December 10, 1964 (Carrier's Exhibit "B"), addressed to the General Chairman read in pertinent part:
The General Foreman's reply, dated December 14, 1965, (Carrier's Exhibit "C") reads in pertinent part:
It is significant to note that the records in this dispute show that in handling this case for more than three months the carrier used other excuses for denying the claim. Evidently the Superintendent in his letter of February 26, 1965 discovered a better excuse for denying the claim since the referee also used it in his denial award.
This Board must accept the record as made on the property. Both the Superintendent and the Chief Mechanical Officer denied the claim, stating that the Foreman was instructing a man in his work, and therefore was acting in the performance of his duties under Rule 30. In the absence from the record of any denial of those statements on the property, the Board would not be entitled to disregard or reject them.