The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.
SYSTEM FEDERATION NO. 22, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: The St. Louis-San Francisco Railway Co. is hereafter referred to as the carrier, and Carmen C. D. Shell, P. G. Barbee, and T. E. Hamm are hereafter referred to as the claimants.
On January 22, 1965 in the departure yard of the Tennessee Trainyard at Memphis, Tennessee, on Track No. 8, an outbound train with two engines, Nos. 203 and 204, including 60 cars and a caboose, was worked by trainmen, under the carrier's orders, who performed the duty of coupling air hoses and inspecting the train for mechanical defects before departure.
Two car inspectors were on duty, in a position at the south end of Track No. 8, two were near the center of the track and one car inspector was at the rear of the train which departed. This has not been denied by the carrier. The related coupling of the air hoses was incidental to the inspection performed for mechanical defects before the departure of the train and in no way incidental to switch movements.
This dispute has been handled with the carrier's officials, up to and including the highest officer so designated by the company. A conference was held with the result the carrier has declined to adjust it.
The agreement effective January 1, 1945 as subsequently amended is controlling.
the movement to a "train." The usual meaning of the word is not susceptible to such a construction.
The yard crew did nothing more than to couple the air hose and make the usual air brake test on the cut of 51 cars to be handled from Tennessee Yard to Georgia Street Yard. Such functions were performed by the yard crew as incidental to their regular duties. The allegation that the yard crew made an inspection of the cut of cars for mechanical defects is specifically denied. The Organization has failed in its burden of proof to establish otherwise.
In the final paragraph of the General Chairman's letter of May 5, 1965 (Carrier's Exhibit F), the Federal Power Brake Law of 1958 is injected into this dispute. It is needless to say that this Division in its deliberation of the question before it will concern itself with interpreting the Agreement concerning rates of pay, rules or working conditions in its application to the factual situation involved rather than whether there has been compliance with the Federal Power Brake Law of 195$.
With respect to the reparations portion of the claim, the Organization contends that it required forty minutes for the three members of the yard crew to perform the work under claim and, therefore, the Organization claims that the three claimants should each be additionally compensated for 40 minutes at their respective pro rata rates of pay. The claimants were not subject to call because it has already been shown that they were on duty and under pay at the time of the occurrence. Neither has the Organization explained why the three particular claimants were selected. Among the car inspectors employed in Tennessee Yard Claimants Shell and Barbee respectively rank second and third in seniority order, but Claimant Hamm ranks sixth in seniority order. Had it been necessary to call any regular employes from the overtime board to perform the work under claim, the claimants would not have stood to be called for the reason that they were already on duty and under pay.
There is no provision in Article V of the September 25, 1964 Agreement or in any other Agreement rule requiring the Carrier to compensate an employe at double-time rate under circumstances such as are involved in this dispute. Also, in the absence of an affirmative showing that any one of the claimants suffered a financial loss or was in any way damaged and since the Agreement contains no provisions for liquidated damages or imposition of penalties, the Carrier respectfully submits that under any and all circumstances the claimants are not entitled to recover the amounts sought. See Third Division Awards 13236, 13237, 13326, 13334 and 13390.
On the basis of the record and all of the evidence, the Board is respectfully requested to find that the Carrier did not violate the Agreement.
All data used in support of Carrier's position have been made available to the claimants or duly authorized representative thereof and made a part of the particular question in dispute.
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.
Although the claim is that the Claimants "were improperly compensated under the terms of Article V of the September 25, 1964 Agreement," the question actually presented is whether the Carrier violated this provision of Article V:
It will be noted that the second paragraph of Article V refers specifically to "an outbound train," whereas the first paragraph does not. However it is clear that it also relate to outbound trains; for the reference is to yards or terminals "from which trains depart," and to "such inspecting and testing of airbrakes and appurtenances on trains as is required by the carrier in the departure yard, coach yard or passenger terminal, and the related coupling of air, signal and steamhose incidental to such inspection, * * *."
The Employes' statement of the case is that "an outbound train including 60 cars and a caboose was worked by trainmen * * * who performed the duty of coupling air hoses and inspecting the train for mechanical defects before departure." This seems to mean an outbound train coupled and inspected by its trainmen.
The Carrier's statement is that "the yard ground crew coupled the air hose and made the usual air test on a cut of 51 cars to be handled in a yard movement between Tennessee Yard and Georgia Street Yard (less than twenty miles)," and adds: "The cut of 51 cars included 31 cars for interchange delivery to the Illinois Central, 5 cars for interchange delivery to the Rock Island and 15 cars for city industries at and in the vicinity of Georgia Street Yard. The yard crew left Tennessee Yard with the cut of 51 cars at or about 7:00 A. M., January 22, 1965." The Carrier states that there was no inspection for mechanical defects.
These statements by the Carrier are not specifically denied by the Employes but are denied by this general statement: "All allegations or implications of the Carrier designed to support their position not heretofore specifically answered are emphatically denied." However the Employes admit in their rebuttal that the hose coupling and the inspection were performed by the switch foreman and two assistant switchmen, and not by a road crew of a train. They also repeat the Carrier's statement "that this train was on an outbound track in the Tennessee Departure Yard, and that the train did travel approximately twenty miles more or less over the main line." These admissions or statements indicate that a switch crew and switch movement were actually involved, rather than an outbound train and its crew. But assuming, nevertheless, that the Employes' general denial of the Carrier's specific allegations concerning this movement is sufficient to controvert them, this Board is confronted with an unresolved dispute of fact. Therefore the claim has not been established that the movement involved was an outbound train or that it came within the provisions of Article V of the September 25, 1964 National Agreement.
The first paragraph of Article V (Coupling, Inspection and Testing) of the September 25, 1964 Agreement, which is the basis of this dispute, reads as follows:
The sentences emphasized from the last two paragraphs quoted from the referee's findings indicate that there is a distinction made between the switch crew and a road crew performing the work involved in this dispute, that is the referee did not consider it a violation of the rule involved to have the switch crew perform the work. There is no reference whatsoever in the rule to trainmen, switch crew, road trains or yard trains. The rule says and means all train movements that meet the criteria set forth in the rule. There is only one criteria in the rule governing who will perform this work and that is if inspecting and testing of air brakes and appurtenances on a train is required by the carrier in a departure yard et cetera where carmen are employed then the related coupling of air hose, signal and steam hose incidental to such inspection (the rule then states) shall be performed by carmen.
The referee in his denial award gives weight to the fact that the train involved in the dispute left from an outbound track in the Tennessee departure yard and traveled twenty miles, more or less, over the main line to reach its destination, which was the Georgia Street Yard. There is absolutely nothing in the rule that requires such trains as involved in this dispute to travel any given distance - the distance could be two miles or five .hundred miles from the departure yard, that is immaterial. It seems incredible that the referee would be so careless when evaluating facts to ascertain if the rules were violated, especially so since the Labor Members furnished him with undisputable facts and evidence showing what constituted a train, including excerpts from numerous court decisions. Three of the excerpts from the Supreme Court of the United States read as follows: