Form 1 NATIONAL RAILROAD ADJUSTb7ENT BOARD Award No.
6975
SECOND DIVISION Docket No.
6767
2-T&P-CM-'76
The Second Division consisted of the regular members and in
addition Referee Robert M. O'Brien when award was rendered.
( System Federation No.
121,
Railway Employes'
( Department, A. F. of L. - C. T. 0.
Parties to Dispute: ( (Carmen)
( Texas and Pacific Railroad Company
Dis te: Claim of Employes:.
1. That the Carrier improperly assigned Carman Helper Harvey Lancaster
to perform Carmen's work on July 10, 11,
17
and
18, 1973,
in
violation of the controlling Agreement.
2. That accordingly, the Carrier be ordered to additionally compensate
the following Carmen eight
(8)
hours at the time and one-half rate
for the dates specified: W. L. LaRue, July 10, and
17, 1973;
L. R.
Oden, July 11,
1973;
W. 0. Harless, July
18, 1973.
Findings:
r-~, 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 ca;.^rier 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 dispate
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
It is the Employees contention that on July 10, 11,
17
and
18, 1973,
Carrier improperly assigned Carmen Helper Harvey Lancaster to perform
Carmen's work at Marshall, Texas. The work consisted of laying out and
preparing wooden lining vrhich was to be applied to the interior of box cars
and the actual nailing of said wooden lining tc the box cars. The Employees
argue that claimants, the regularly assigned Carmen at Carrier's Mechanical
Department, were entitled to perform the foregoing work. They cite Rule 21,
Seniority, Role 22, Assignment of Work and place particular emphasis on
Rule
83,
Classification of Work, to support their position. They furiher
aver that nowhere in Rule
84,
the Classification of Work Rule for Carmen
Helpers, is there language giving Carmen Helpers the right to build,
maintain and inspect passenger and freight cars.
f o xnn 1
Page 2
a
Award No.
6975
Docket No.
6767
2-T&P-CM-
' 76
Carrier retorts, however, that"on the claim dates Carmen Helper
Lancaster was assigned to work with Carman Sanders who was applying interior
lining to box cars. Carrier agrees that Lancaster performed the duties
here complained of, but stresses that nothing in the Agreement or in the
practice on this property precludes a Carmen Helper from assisting a Carman
in the preparing and affixing lining to the interior of boxcars.
It stands unchallenged that work reserved exclusively to Carmen, by
either contract or past practice, cannot be assigned to employees of another
class or craft, including Carmen Helpers. Yet, in the claim at hand, the
Employees have not established that the work of preparing and affixing
lining to the interior of boxcars is work reserved exclusively to employees
of the Carmen's craft. While it is indeed true that Rule
83
grants to
Carmen the right to build, maintain and inspect all freight cars, that Rule
cannot be construed to give Carmen the exclusive right to lay out and prepare
wooden lining for the interior of boxcars and the attendant nailing of such
in place. Nor has evidence been presented which would establish that Carmen
have performed this work in the past to the exclusion of all other crafts
and classes of employees.
All that Lancaster did was to assist Carman Sanders in preparing and
affixing wooden lining to the interior of boxcars which work he was not
proscribed from performing by either the Agr; ement or bar past practice.
The claim consequently lacks support and will be denied as a result.
A
WAR D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL
RAILROAD ADJUSThIIENT BOARD
By Order of Second Division
BY-,L"'0n~'~''.rL...~ ~L.=,.··:~'Z.....
semarie Brasch - Administrative Assistant
Dated at Chicago, IlIllinois, this 0th day of December, 1 7 .
, 3 v ,9 5
R E C E I V E D
REFEREE' S ANSWER TO TABOR MEMBERS' `
r
FEB 2 · J?
DISSENT TO AWARD N0. 6975
G,
d
While it
should be
readily apparent to all members of the Second
Division of the National Railroad Adjustment Board that the undersigned
is reluctant to answer Dissents to Awards in which he has participated as
a Referee,
in
the instant case an exception must be made. I must respectfully disagree with the Labor Members' Dissent relative to the conclusions
reached by the majority in Award No.
6975.
Yet, I must agree
with them
relative to
the
language of said Award.
In the
Award, the majority held, in pertinent part:
"Nor has
evidence been presented which would establish
that Carmen have performed this work (preparing and
affixing lining to the interior of boxcars) in the
part to the exclusion of all other crafts and classes
of employees."
The Labor Members argue that in so Finding, the majority has exceeded
their authority inasmuch as the Carrier never contended that any classes or
crafts of employees were involved other than Carmen. In order to dispel any
misapplication of the Findings in Award No. 6975, this Referee must concur
in the Labor Members' contention that the Carmen's craft was the only craft:
involved in that dispute. All the Board found in Award No.
6975
was that
0Carmen Heloers were not precluded from assisting a Carran in preparing and
affixing wooden lining to the interior of box cars. The Board did not hold
that employees of another craft or class could assist Carmen in performing
the aforementioned work. That contention was not rode by the Carrier and it
was not the intention of the majority to raise such contention when they held
that Carmen Helpers could assist a Carman in preparing and affixing wooden
lining to the interior of boxcars.
Robert M. 0' Brien _ __
L
JAN I p 1976
G. M.
YouHn'
''", LA'~30.~,' KEMuF'iS' DISSENT TO r:TIARD NO. 6975, DOCKET NO. 6767
This case involves a dispute between the Brotherhood Railway
Carmen of the United States and Canada of System Federation No. 121
and the Texas and Pacific Railroad Company, as to whether the
Carmen Helpers under the Collective Bargaining Agreement were entitled to preparing and affixing lining to the interior of freight
cars over that of Carmen (mechanics]. No other class or craft was
involved in this dispute.,
The ir;aj.ority stated in the Findings in Award No. 6975:
"It stands unchallenged that work reserved
exclusively to Carmen, by either contract or
past practice, cannot be assigned to employes
of another class or craft, including Carmen
Helpers. Yet, in the claim at hand, the Fm-
,, pl.oyes have not established that the work of
preparing and affixing lining to the interior
of boxcars :is work reserved exclusively to
employes of the Carmen's craft. While it is
indeed true that Rule 83 grants to Carmen the
right to build, maintain and inspect all freight
cars, that ;Rule cannot be construed to give
Carmen the exclusive right to lay out and prepare
wooden lining for the interior of boxcars and the
attendant nailing of such in place. Nor has evi
dence been :presented
which
would establish that
Carmen have performed this work in the past to
the exclusion of all other crafts and classes of
employes."'
It is beyond the comprehension of the Labor Members as to
how the majority arrived at the conclusion that the preparing and
affixing lining to the interior of freight cars was not covered to
Rule 83 of the Collective Bargaining Agreement.
Rule 83 reads in part:
"Carmen's work shall consist of building,
maintaining,, dismantling (except all wood
freight cars), painting, upholstering and
inspecting all passenger and freight cars,
both wood and steel, XXX."
The preparing and affixing of linings ~o the interior of
freight.
cars fall :within the meaning of the word maintaining ac
,
-n
1
-cis,
uch as removing and replacing couplers, drafk- gears, ah,
side sheets, roof, safety appliance and etc.
I ,
_.
_ 2 -
LABOR MEMBERS'
DISSENT TO AWARD NO. 6975, DOCKET NO. 6767
The American College Dictionary define 'maintain' as:
"to keep in due condition, operation
or force; keep unimpaired; to keep in
a special state position, etc."
There is no language in Rule 84 classification of work rule
for Carmen Helpers giving Helpers the right to build, maintain
and inspect passenger and freight cars.
To compound the error the majority stated:
"Nor has evidence been presented
which
would establish that Carmen have performed
this work in the past to the exclusion of
all other crafts and classes of employes."
As heretofore stated this dispute involved Carmen Helpers
preparing and affixing lining to the interior of freight cars.
There is no evidence of record that the Carrier contended that
any other classes or crafts were involved. For the majority to
include other crafts and classes is in violation of Circular No.
1, Rules of procedure of the National Railroad Adjustment Board
reading: _.
"Position of Carrier: Under this caption
the Carrier must clearly and briefly set
forth all relevant, argumentative facts
including all documentary evidence submitted in exhibit form; quoting the
Agreement or rules.,involved, if any, and
all data submitted in support of Carrier's
position must affirmatively show the same
to have been presented to the employes or
duly authorized representative thereof and
made a part of the particular question in
dispute.
LABOR
MEMBERS' DISSENT TO AWARD NO. 6975, DOCKETNO. 6767
Therefore when the majority included other crafts and
classes of employes in their "Finding" they exceeded the authority of this Division of the National Railroad Adjustment
Board.
For all of the foregoing reasons we are compelled to
dissent.
William O. Haarn
CD-0.4 ezsza~ -
D. S. Anderson
I
kof1&1~0
G. R. DeHague
M. J. C llen
J. G. Hayes