Form 1 NATIONAL RAILROAD ADJUSTPEi3T BOARD Award No.
6823
SECOND DIVISION Docket No. 6672
2-CRRof1TJ-ChM'
7 5
The Second Division consisted of the regular members and in
addition Referee Robert M. O'Brien when award was rendered.
( System Federation No. 109, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Central Railroad Company of New Jersey
Dispute: Claim of Esnployes:
1. That the Carrier violated the provisions of the agreement when .
they abolished Car Inspector's positions on the 1st Trick,
2nd Trick and relief position at the Bayhead Engine Terminal in
New Jersey, effective October 20, 1972 and then unilateraly
and arbitrarily -without agreement rebulletined positions with
new starting times, relief position that does not relieve on
certain dates, and created lapped shifts effective October 23,
1972.
2. Further, that Carrier violated the procedural provisions of the
Agreement by failure to notify the local chairman in writing of
its decision within sixty (60) days from the date claim was
. filed.
3.
That accordingly, the Carrier be required to restore the original
shifts and make the claimants whole from October 23, 1972 and
continuously for every day thereafter for Car Inspector H. E.
Bennett, employed on the 1st Trick Monday through Friday four
(4) hours at the punitive rate from x+:00 AM to 8:00 AM, and
four (4) hours at the straight time rate from 12:00 Noon to
4:00 PM; Car Inspector G. W. Sweeney on the 2nd Trick for every
Monday, Tuesday and Wednesday two (2) hours and forty (40) minutes
at the punitive rate from 2:00 PM to x+:00 PM (call time) and
two (2) hours at the straight time rate from 10:00 P:,4 to 12:00
Midnight. Relief position Car Inspector J. J. Garrett for
every Thursday and Friday, two (2) hours and forty (40) minutes
at punitive rate from 2:00 PM to x+:00 pm and two (2) hours at
the straight time rate from 10:00 PM to 12:00 Midnight. For
vacation relief Car Inspector P. F. Pederson for Thursday and
Friday October 2.6 and 27, 1972, the same applicable rate as
applied to J. J. Garrett.
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
Form 1 Award No.
6823
r_.,,
Page 2 Docket No.
6672
' 2-CRRofNJ-CM-'
75
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 waived right of appearance at hearing thereon.
Claimants are employed as Car Inspectors at Carrier's Bayhead Engine
Terminal. On October 4, 1972, Carrier posted a bulletin abolishing the
Car Inspector's positions on the first and second shift, as well as the
relief position. On the same date, Carrier bulletined the abolished
positions with new starting times. On October
6,
1972 the Organization's
General Chairman wrote Carrier's Chief Mechanical Officer that the
bulletins were improper inasmuch as they failed to comply with the contract
provision requiring
5
days advance notice. Thereafter, Carrier cancelled
these bulletins and on October 13, 1972 rebulletined the positions with the
new starting times of the shifts. The Organization protested Carrier's
change in the starting time of the shifts in question averring that Carrier
has changed the starting times thereof without reaching mutual agreement
with it as required by Rule 8(a), (b) and (c).
The Organization has raised the issue that Carrier violated Rule
28(a), relative to Time Limits, when it failed to render a decision in
writing within
60
days of its claim letter of November 9, 1972. Carrier
maintains that it has complied therewith when, after meeting with the
Organization's General Chairman on December 28, Carrier's Chief Mechanical
Officer denied the claim b;y letter of December 29, 1972. While the
Organization maintains that Carrier's letter of December 29 did not relate
to its claim letter of November 9, but to its letter of November
6,
there
is no indication in the record that Carrier did not intend to deny the
claim when it sent the General Chairman this letter of declination. The
Board thereby concludes that Carrier has, in fact complied with the
60
day time limit and thus the claim is not procedurally defective.
. The Organization strenuously argues that when Carrier changed the
starting times of the first and second shift and the relief position with
the first shift commencing prior to 6:00 A.M., this violated Rule 8(a),
(b) and (c) of the Agreement since Carrier failed to mutually agree to this
change with the Organization. If the Bayhead Engine Terminal were a Main
Shop or an Engine House, then Rule 8(a) would preclude Carrier from
starting a shift prior to
6:00
A. M. unless the Organization agreed.
However, Carrier contends that this Terminal is not a Main Shop or an
Engine House and thus Rule 8(d) applies. Since there does not appear to
be evidence in the record rebutting Carrier's allegation in this regard we
must therefore conclude that Rule 8(d) is applicable to.the claim at hand.
1. ..
Form 1
Page 3
Award No. 6823
Docket No.
66;'2
2-CRRofNJ-CM-'i'5
Rule 8(d) provides that shift starting times shall depend on the
requirements
of
Carrier's service, subject to mutual agreement by the
parties. Rules similar to 8(d) have been interpreted by this Board so
as to require the parties to confer in good faith in a sincere attempt to
reach a mutual agreement. A mere token effort will not suffice. However,
once having so conferred, if the parties are unable to reach a mutual
understanding, then Carrier may proceed to implement the proposed changes.
hile the Organization alleges that Carrier made no good faith effort to
effect a mutual agreement on the starting time changes the record does not
support this allegation.
General Chairman Leshik met with Mr. Cocchiola, Carrier's Manager of
Passenger Equipment, on October 12 and then on December 28 he met with
Mr. Wright, Carrier's Chief Mechanical Officer relative to the changes in
starting times. And while the latter meeting was held subsequent to
implementation of the changes, there is no evidence to indicate that
Carrier was not amenable to rebulletining the positions if the parties
could mutually agree. When Carrier met with the General Chairman on October
12 and December 28 it complied with the requirements of Rule 8(d). However,
when these conferences then failed to result in mutual agreement it was
Carrier's prerogative to institute its proposed changes. Furthermore,
,we are unable to find contractual support for the Organization's contention
that Carrier is precluded from establishing shifts that lap, and from
establishing a shift that has two different starting times. This Board
can therefore find no Agreement support for the claim and it must be
denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
r
n ~ l/
By
1'--'7Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 28th day of February, 1975.