Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
6603
SECOND DIVISION Docket No.
6476
2-LV-Cry-
t
73
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation do.
962
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( J. F. Nash and R. C. Haldeman, Trustees of the Property of
( Lehigh Valley Railroad Companys Debtor
Dispute: Claim of Employes:
That the Carrier violated the provisions of the August 29, 1944
Upgrading Agreement and Rule 29 of the Controlling Agreement when they
refused to allow Journeymen Carmen Alvaro G. Ciardi and Richard Vienna
to displace and take Carmen positions temporarily filled by set-up
Carman Helpers at Sayre, Pa.
That accordingly the Carrier be ordered to compensate the above named
Carmen at the applicable Carmen rate of pay for all days starting
With
April 20, 1972 for not being allowed to work Carmen positions at Sayre,
Pa, that are being temporarily filled by set-up helpers.
Findings:
The Second Division of the Adjustment Board, upon
the whole
record and
all the evidences 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 21.1
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants were furloughed Carmen from the Manchesters New York seniority
point., having been furloughed in July and October 1971. On April 12 and
27s 1!72
1
Claimants requested to displace upgraded Carmen (promoted helpers) at Sayre,
Pennsylvanian another seniority point. Carrier refused this request.
Petitioner bases its position on an alleged violation by Carrier of Rule
29 of the Agreement and also of the Memorandum of Agreement of August
29, 1944
and
the interpretation and practice of the latter agreement. Rule 29 provides:
'orm 1
'Page 2
Award No.6603
Docket No. 6476
2-LV-CM-'73
"While forces are reduced, if men are needed
at
other points,
furloughed men
wiles
be given preference to
transfer, with
privilege of
returning to home station when force is increased,
such transfer to
be made without expense to the company.
Seniority to govern."
The Memorandum of Agreement of August 1944 provided:
"MEMORANDMM OF AGREEMENT COVERING SENIORITY
STATUS OF EMPLOYES 321 THE- MECHANICAL CRAFTS
WHO HAVE BEEN PROMOTED TO MECHANICS FROM
APPRENTICES' HELPERS AND COACH CLEANERS.
1. Helpers in any craft promoted to mechanic's position prior
to January 1, 1940, will be placed on the mechanics' seniority
roster as the date they were first. promoted to mechanics.
2. Apprentices who have not finished their apprenticeship and
who have been advanced to perform mechanical work will be
given they seniority as recharies from the date of advancement, upon the co=letion of their four (4) years apnrenticesh;r.
Apprentices advanced to mechanics before the ccnnpletion of
their training course must keep up currently the lessons required of them in accordance with the rules governirZ apprentices.
Helpers in any craft promoted to mechanics positions subsequent
to January 1,
1940,
will be placed on a desk seniority roster
as of the date they were promoted; but this will not effect
their helper's seniority date; they to be carried on the
regular helper's roster as of their original date.
5. On acdount of the necessity to temporarily advance apprentices
and helpers to mechanics' positions it is agreed that the
following procedure will be followed in making such advancements.
6.
Regular Apprentices, who have served three (3) years or more
of their apprenticeship, will be advanced first.
7. Helper Apprentices, who have served two (2) years or more of
their apprenticeship, will be advanced next.
8. Regular Apprentices, who have served two (2) years or more of
their apprenticeship, and Helper Apprentices, who have served
one (1) year or more of their apprenticeship, will be advanced
next.
3.
_ Form 1 Award No.
66()3
`° 'Page
3
Docket No.
6476
_ 2-LY-CM-'
73 '
"9.
Qualified Helpers having two (2) years or more experience as
mechanics, or as helpers, will be advanced next.
10. Local Management and Local Committees will mutually agree on
the employes to be advanced and demoted, subject to appeal
to the General Chairman and the General Management.
11. Question of disposition of helpers promoted to mechanics in
any craft, subsequent to January 1,
1940,
will be disposed of
between the General Committee and the Management at the
expiration of the present emergency.
12. This Memorandum of Agreement supersedes all previous Memorandums or Interpretations thereto, covering the promotion of
apprentices and helpers."
The record also indicates that the
1944
Agreement had been interpreted in
1948
to mean that Carrier could promote helpers until mechanics were available:
through apprenticeship training programs or through other sources. Petitioner also
argues repeatedly that it had been a long established practice ®f Carrier, in
accordance with the 1044 Agreement
, to permit fwrlca;_ ..,, Cn=,.men to claim posi't'ions
at another seniority point that were temporarily fit' by set-up helpers.
Carrier contends that Rule 29 gives furlouZ,;a::i Carmen the right to transfer,
3
not to displace, employes at another seniority point. Carrier states that this
position is reinforced by the provisions of
Rule
31 vinich confines seniority to the
. point employed. Further Carrier argues that the
1944
Agreement contains no provisions
for permitting furloughed employes to displace at another seniority point. Carrier
also denies the practice of permitting displacement as claimed by the Organization.
Rule 29 and the
1944
Agreement do not in their clear language provide for
the displacement of set-up helpers at another seniority point by Carmen. For
Petitioner's interpretation to prevail then, the consistent past practice must be
demonstrated. The record contains repeated allusions to such practice but not
even one instance of such displacement in the twenty-eight year period. Since
reiteration of argument is not a substitute for probative evidence, we must reject
Petitioner's position.
AWA RD
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT
BOARD
' By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY
-f
i~~.~
- c'%'C /,!.(':- -rL ._.
Ro~emar a Bra'sch - dministrative ssLstant
Dated at Chicago, Illinois, this 28th day of November, 1973.