Award No. 5368 Docket No. 5232 2-SOU-CM-'68
The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter when award was rendered.
SYSTEM FEDERATION NO. 21, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: Carmen O. W. Tucker, F. Robertson and A. Agne, hereinafter referred to as the Claimants, employed by the Southern Railway Company hereinafter referred to as Carrier, in Carrier's Departure Yard, East St. Louis, Illinois. Claimants were available and qualified to perform the work involved herein, i.e., the coupling of air hose and making brake test on Belt Delivery in the Departure Yard at East St. Louis, Illinois, on February 20, 1965.
On February 20, 1965, Switchmen on Engine No. 2169 were instructed and/or authorized to couple air hose and make brake test on Belt Delivery consisting of thirty-eight (38) cars in the Departure Yard, East St. Louis, Illinois, where Carmen are employed and on duty. The Belt Delivery is made up in the Departure Yard, at East St. Louis, Illinois, seven (7) days out of each week. It is required by the Carrier that the air hose be coupled and brake test be made before said train and/or cars proceed to the Main Line in order to deliver and pick-up cars within the Yard Limits of East St. Louis, Illinois.
This dispute has been handled with all officers of the Carrier designated to handle such disputes, including the highest designated officer of the Carrier, all of whom have declined to make satisfactory adjustment.
All evidence here submitted in support of Carrier's position is known to employe representatives.
Carrier not having seen the Brotherhood's submission reserves the right after doing so to make reply thereto and submit any other evidence necessary for the protection of its interests.
In event this dispute is deadlocked and a referee is selected or appointed to render an award Carrier desires to appear before the Board with the referee present.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carrier 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.
This dispute requires interpretation of Article V of the January 27, 1965 Agreement, which is:
There being nothing ambiguous in the language of Article V, the interpretation is entirely dependent upon the factual situation involved in each independent dispute. In order to sustain a claim involving Article V, this Board must find that the following facts exist:
The burden of proving these elements is on the Organization. In the instant case, the evidence falls short of proving that the train "departed" the terminal limits. The evidence shows that Coapman Yard represents the Northern and Western limit of Carrier's line. Therefore, any departure train would necessarily have to depart in a Southerly or Easterly direction. The entire movement of the train involved in this dispute was North of Coapman Yard and was within the terminal limit. There was no departure.
The work involved was moving cars to other locations within -the terminal limits and returning cars to the make-up yard by switch crews. The work did not involve train crews.
The majority states in their findings that " * * * In order to sustain a claim involving Article V, this Board must find that the following facts exist:
There is no dispute on items 1, 2 and 3 as it was agreed that carmen were employed and on duty in the departure yard and the hose was coupled and the air tested and inspected. There is no dispute that the train departed the Coapman Yard, which was the departure yard.
The majority further states that "The work involved was moving cars to other locations within the terminal limits and returning cars to the make-up yard by switch crews. The work did not involve .train crews."
There is nothing whatsoever in Article V that could be construed as requiring such trains to depart from yard limits. There is no provision in Article V requiring any certain class of employes to operate such trains. There is no dispute that the train involved departed from the Southern Railroad's property when delivering interchange cars to the Norfolk & Western Railroad. There is no dispute that the train involved departed the Southern Railroad Yards and entered the main line of the New York Central Railroad going north out of East St. Louis and traveled a considerable distance to deliver interchange cars to the New York Central Railroad Yards. These are undisputable facts verified in the Carrier's submission. The train involved not only departed the yard limits of the Southern Railroad, it departed from the Southern Railroad; facts which the majority so conveniently overlooked in arriving at their findings.
The majority ignored the probative facts in this case, making the award palpably erroneous. We dissent.