The Second Division consisted of the regular members and in
addition Referee David Dolnick when award was rendered.
EMPLOYES' STATEMENT OF FACTS: Dupo, Illinois is a terminal point on the Missouri Pacific Railroad, hereinafter referred to as the Carrier, where, among other things, trains are regularly made up, inspected and dispatched. Carmen are regularly employed and assigned in the terminal as Car Inspectors, with assigned duties of inspecting, coupling air hose and testing brakes on trains made up in the terminal prior to their departure.
At about 2:40 P. M. on March 29, 1965, a train consisting of a locomotive, several cars and a caboose, was made up in Dupo Departure Yard A for dispatchment to Columbia Rock Quarry, Columbia, Illinois, which is located approximately seven (7) miles from the Dupo Yard limits. The inspection, coupling of air hose and testing of brakes on said train, which is required by carrier prior to its departure, was performed by the Train Crew.
Carmen M. P. Kalbfleisch and W. Leyerle, hereinafter referred to as claimants, are regularly employed as such by the carrier at Dupo, and on the date in question and at the time said work was performed by the Train Crew, were working in a track adjacent to the track on which the Columbia Rock Quarry Train was made up for departure to Columbia, Illinois.
Paragraph 2 of Employes' Statement of Claim requests your Board to order the Carrier to pay two carmen at Dupo who were on duty at the time of the incident in question one hour's pay each at the pro rata rate. Article V of the Agreement of September 25, 1964, upon which the Employes rely, does not provide for any such payment. Nor does any other rule in the Agreement provide for such a payment. No explanation has been offered for the claim of one hour for each claimant. As previously stated, claimants were on duty and under pay at the time the yard crew coupled the car. Consequently, claimants could not have possibly suffered any loss of pay. Your Board has denied penalty claims under such circumstances many times. For example, your Board denied a penalty claim in Award 3967 with the assistance of Referee Johnson where the agreement did not provide for any arbitrary or penalty and no pecuniary loss or damage to the claimants was shown. See also Third Division Award 13958.
We then come to the inescapable conclusion that the penalty claim stated in paragraph 2 of the Employes' Statement of Claim must be denied in any event. Your Board need not come to a consideration of this point, however, since the claim must be denied on its merits.
All matters contained herein have been the subject matter of correspondence and/or conference.
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.
Carrier argues that two criteria must be met "before hose coupling becomes carmen's work" under Article V of the Agreement. They are:
Specifically, it is the position of the Employes that the Carrier violated Article V of the September 25, 1964 Agreement. The pertinent part of that Article reads:
Employes admit "the word `train' is a broad and all inclusive term and it was clearly understood by the parties to the agreement that it covered all trains made up in the yard for movement outside yard limits." (Emphasis ours.)
Carrier says that the "Employes have the correct principle", but that under railroad terminology, "Article V applies to trains made up in a departure yard at the initial terminal which is manned by a road crew issued train orders or clearances for movement in road service outside of yard limits to a final terminal or turn around point." More emphatically, the nub of Carrier's argument is that Article V applies to road trains only, and that the cars handled at the quarry did not constitute a "train" within the meaning of said Article V. For that purpose, Carrier says that the quarry is within switching limits, and that the switching was done by a yard crew and not by a road crew.
Article V makes no such sharp distinction as urged by the Carrier. A departure yard is any yard where trains are made up and cars are coupled and inspected whether they are destined for road service or for industry switching outside the yard limits. Carrier admits that the Columbia Quarry "is located adjacent to the yard at Dupo." Nowhere does the Carrier specifically deny that the Columbia Rock Quarry "is located approximately seven (?) miles from the Dupo Yard limits." The Carrier says only that the fact that the industry lead is six or seven miles long is unimportant. It is important, however, to give meaning and intent to Article V.
The parties negotiated Article V on the basis of a recommendation made by Emergency Board No. 160. That Board recommended, in part, the adoption of the following rules:
Reference to "road trains" does not appear in Article V. It was deleted in negotiations by agreement of the parties. The connotation to "road train" has a particular significance. It cannot now be said that "train" as used in Article V refers only to a "road train" which alone is required to display markers or travel under train orders. If the parties had this intent, they would have adopted the Emergency Board's recommendation and they would have confined carmen work to road trains only.
Employes allege that the "inspection, coupling of air hose and testing of brakes on said trains, which is required by carrier prior to its departure, was performed by the Train Crew." This is not categorically denied by the Carrier. In its Ex Parte Submission, the Carrier says:
This is certainly "inspection" within the meaning of that term. The quarry is up a steep ascending grade. Certainly, the Carrier made sure that the brakes were adequate for the journey. It is reason enough for the "inspection."
Furthermore, and more important, is the fact that the Carrier declined the claim on the property solely because a yard crew moved the train and that Article V applies to road trains only.
On June 22, 1965, Carrier wrote to the Vice General Chairman, in part, as follows:
Again, on August 9, 1965, the Carrier wrote to the General Chairman, in part, as follows:
There is adequate evidence in the record that the coupling of the hose was related to an inspection of the air brakes.
The two Claimants were on duty at the Dupo yard during the hour for which claim is made. Carrier argues that since no rule in the Agreement provides for payment where no pecuniary loss or damage is shown, the penalty claim should be denied. Carrier violated Article V of the Agreement. If no penalty is assessed for that violation, it is an invitation to the Carrier to continue to violate it with impunity. The explicit provisions of Article V