. (Advance copy. The usual printed copies will be sent later.)
Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6438
SECOND DIVISION Docket No. 6239
2-SOUZCM-'23.
I
The Second Division consisted of the regular members and in j
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No. 21, Railway Employes'
( Department, A. F. of L. - C. I. 0.
,ties
t4
Dispute: ( (Carmen)
( Southern Railway Company
Disnu_&er Claim of Emuloves:
1. That under the current Agreement, Carman Paul H. Hancock, Knoxville,
Tennessee, was unjustly deprived of his job as
groundman on
Derrick D-1
or Big Derrick, John Sevier Shop, Knoxville, Tennessee.
2. That accordingly, the Carrier be ordered to assign Carman Paul H.
Hancock as groundman on D-1 or the Big Derrick, at John Sevier Shop,
Knoxville, Tennessee, and that beginning February
26, 1971,
he be
paid all overtime beyond his bulletined hours, rest days, and..
holidays made by D-1, or Big Derrick, at six per cent (6
0)
per. -annum.
Findingst .
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.
Parties to said dispute were given due notice of hearing thereon.-.
Prior to 1950 Claimant, a Carman,, was assigned to the Coster Shop of the
Carrier at Knoxville, Tennessee and was a member of the wrecking crew working on
the derrick stationed at that shop. In 1950 the derrick was transferred to Carrier's
Sevier Yard at Knoxville. Members of the wrecking crew were given the- option of
transferring with the derrick. Claimant did transfer,. was given a first shift repair
track assigrunent, and continued as a member of the wrecking crew until approximately
January 1970. At that time Claimant bid on a car inspector's job and, in accordance
with the Agreement was awarded that position. Upon being assigned as an inspector,
he was required to relinquish his position as a groundman on the wrecking crew. The
Rules relating to the wrecking crew are as follows:
"152. Wrecking Crews:
Wrecking crews,
including engineers
and firemen, shall be
composed of regularly assigned carmen and will. be paid for such
Form 1 Award No. 643$
Page 2 Docket No. 62~
' 2-SOU-CM-'~ __
service as per general rules. Meals and lodging will be provided
by the Company while crews are on duty in wrecking service.
153. When wrecking crews are called for wrecks or derailments
outside yard limits the regularly assigned crew will accompany
the outfit. For wrecks and derailments within the yard limits
sufficient carmen will be called to perform the work if their
services are needed."
The Organization alleges'that there are no Rules in the Agreement'requir.ing a Carman to work any specific ,job in order to be eligible to work as a groundman
on the wrecking crew. The Carrier claims that the practice for many years has been
for wrecking crew members at the larger shop points to be assigned to the first.
shift on the repair track. Unrefuted evidence has been presented sspporting the
practice claimed by Carrier; however, the practice is not alleged to exist at smaller
points where wreckers are assigned or at Birmingham, Alabama, a large shop where a
local agreement was made. The record also indicates that the parties in 1955 discussed the possibility of establishing a separate sub-department for derrick crews
but did not arrive at an agreement.
The Carrier relies in part on Second Division Awards 2560 and 3898. In
both of those cases, however, the question of the availability of the Claimants
for wrecking crew service was the central issue; in this case there is no evidence
that Claimant eras either inaccessible or unavailable for wrecking crew service.
Award 2560 affirms the applicability of seniority for vrecking crew assignments. ,
With respect to the past practice argument raised by the Carrier, it is
well established that a practice which is consistent, of long standing, is mutually
acceptable, and is not contrary to the Agreement should govern. In this case the
practice is not consistently followed throughout the Carriers operations. Furthermore, ire have held (Second Division Award 4591 and others) that: "Past practice
does not now stop the Organization from enforcing a contractual provision'!. We
find that the statement in Rule 152 "...Wrecking crews . ...shall be composed of
regularly assigned careen..." is clear and unambiguous; it does not require
special assignmnt or other qualification for assignment to the wrecking crew. 'We
said in Second Division Award No. 3873 " ..custom or past practice are of no
probative value in determining the meaning of a labor agreement if the wording
thereof is clear and unambiguous." (See also Second Division Awards 1898 and 2210).
In Second Division'Award No. k30~'_dealing with a related problem, we:held
that "...the carrier has restricted the seniority rights of its carmen'_to two
particular classes (Car Repairers and Carmen Carpenters) and has thereby violated tile
agreement of the parties." We concluded in that case that all carmen were eligible
for wrecking crew assignments.
The Carrier also raises the argument that there is no-rule requiring
wrecking crew assignments be made strictly on the basis of seniority. Rule 17 states:
i
Form 1 Award No. 6438
Page 3 Docket No. 6239
2-SOU-CM- ·'t3 .
"17. Filling Vacancies or New Positions in the Respective Crafts: _
When vacancies occur or new positions are created in the
respective crafts, they will be posted and employees given pre
ference thereto, efficiency and seniority to govern."
We can find no support for Carrier's position in either the Agreement or Board .
decisions. Wrecking crew assignments, even. though intermittant, are regular,
assignments in the context of the agreement (See Rules 152 and 153). We shall
reaffirm the principles enunciated in our conclusion in Second Division Award No.
5807, which closely parallels this case:
"Rule 18, of course contains no exceptions and, thus, on its face,
doss not open the way to barring any qualified Carman from a wrecking assignment. Nevertheless, as indicated by Awards 3898 and others,
this Rule must be applied reasonably. As stated there, 'if a change
of basic position were to develop a conflict so that continued avail-
, ability for wreck crew duty spas no longer possible his status as such
would have to be discontinued.' But when men are reasonably available,
there is no contractual basis fox excluding them from a vrreck crew
assignment, in our estimation, merely because of possible difficulties
in rep?.acing them on occasion. Rather, such problems can best be
resolved by mutual agreement of the parties as, evidently, has been
done at other locations."
We find no provision in the Agreement requiring the payment of interest,
should a claim against the Carrier be sustained. This Board has held on numerous
occasions that such-claims must be denied since we cannot award Claimant that which !
is not provided for by the specific terms of the Agreement (Second Division Awards
6261, 635? and, 51;67 among others).
$ased on the facts presented and the arguments adduced we
conclude
that
Claimant should not have been removed from his position as a member of the wrecking
crew. We shall sustain the claim, except for the interest payments.
A WAR D
Claim sustained, but no interest will be paid. i-
MATIONAI. RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
I
Attest: _ . ~,l ,f~
Executive Secretary
i,
Dated at Chicago, Illinois, this 17th day of January, 1973.
.. I
DISSM of CARRIER DEMERS
TO
Aw'ARA 64I-AOC= N0.
6239
Award643$ is in serious error and we dissent.
There is no rule in
the Agreement providing specifically
that members of wrecking
crews mus: be selected on
the basis of
seniority in the Carmen's craft. Neither Rule 1.52 nor lkile 17, cited
in the Award so pro-rides. In the record
before
the Board there was
no dispute between the parties as to the
practice followed through
the
years i n nanning
wreckers at larger points on Carrier's system. It is
well. recognized that, where rules nay not be clear and unambiguous, the
Board must then
loot
t o practice to determine the irx':ent of the parties.
This principle should have been adhered to
herein and
the claim denied
in its entirety.