Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Eiwarii No. 7068
SECOND DIV ISION Docket No. 6842
2-L&N-MA-' 7b
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
( International Association of Machinists and
( Aerospace Workers
Parties to Dispute
(
( Louisville and Nashville Railroad Company
Dispute DisRute: Claim of Employes.:
(a) That the Carrier established a heavy locomotive repair (dead work;)
program a t Radnor, Tennessee and scheduled it to operate on a
seven-day week, rather than on a Monday through Friday basis as
provided by the Agreement, and, by long established practices.
(b) Claim in behalf of Machinists W. C. Stevens, G. L. Ra msey, L. W.
Minton., D. E. Clement, R. E. Jackson, Leo Banks, J. W. Western,
K. E. Thacker, Joe Brown, W. M. Brindley, R. Lecomte, G. M. Jones,
W. E. Anderton, E. G. Brindley, R. L. O'Neal, G. E. Green, R. W.
OtLeary, J. P. Burns, J. B. Lankford, J. P. Medlin, D. 0.
Pope
M. 0. Medcalf, E. H. Thompson, G. L. Tatum, C. T. Wilson, D. S.
Adams, C. D. Gambill., J. A. Tripp, R. B. Dozier, J. H. Thompson$
C. A. Vogeli, S. J. Sloan, B. R. Bomar, and J. C. fakes, in the
amounts as set forth hereinafter.
(c) The claim was originally filed as a "continuing" claim and
amounted to a total of eighty-eight (88) hours at penalty rate
for the period November 24, 1973 through January b, 1974, a period
of seven weeks9 The violation continued for forty-one weeks, or
until October 20, 1974, for an additional five hundred twenty eight
(528) hours at penalty rate, at which time the Carrier discontinued
the seven day operation and rescheduled it on a Monday through
Friday basis. Thus, the total remedy sought is blb hours of pay
a t time and one half rate to be divided equally among the Claimants
named above.
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 employee involved in this
dispute are respectively carrier and employs 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.
Form 1 hward No.
7068
Page 2 Docket No.
6842
2-L&N-MA-'76
Review of the record and the positions of the parties provides the
following undisputed facts: Carrier operates a locomotive repair shop at
Radnor, Tennessee on a seven-,day basis. In November 1973 Carrier initiated
a "re-seal" program for diesel locomotives. Re-seal work consists of changing
over cylinders, bearings, pistons, water pumps, and other heavy repair work
as needed. On or about November 24, 1973 Carrier scheduled this reseal work
on a seven-day basis and worked it as such until on or about October
20,
1974
when Carrier, in connection with top-level handling of the instant claim,
redeployed the work force at Radnor to provide for a Monday - Friday reseal
program. The details of the redeployment to a five-day reseal program in
October 1974 are best shown by the exchange of correspondence between the
Organizations' General Chairman and Carrier's Assistant Vice President,
Personnel and Labor Relations reading in pertinent parts as follows:
" In discussing the matter in conference on the 14th, it
was still our position that there is no agreement provision
which restricts the re-seal operation to five days per week.
However, in a spirit of cooperation to resolve the matter, we
agreed to rearrange the forces at Radnor to provide for a
Monday - Friday re-seal program with your concurrence that the
employees assigned to light-running repairs, when time will
permit, can be required to work on re-seal jobs on Saturdays
and Sundays. It was your thought that such an arrangement of
having the light-running repair employees work on the re-seal
work would be in violation of the overtime agreement, but you
were willing to try this arrangement to see what the results
would be.
While arrangements are being made to rearrange the forces,
it may be that such will not meet the needs of the service, and
it may be necessary to revert to the seven-day operation. Furthermore, as explained to you in the conference, this action on our
part should not be taken in any manner to indicate that we have
changed our opinion as to an agreement violation, for we have
not. Our action is only to provide for harmonious relations
and try to resolve the problem.
It was hoped that in view of the circumstances involved
that you could see your way clear to withdraw the claim during
the conference; however, since it was not withdrawn, it must
remain as declined.'
"We, too, are very desirous of cooperating with the Carrier in
trying to resolve our differences and provide a rare efficient
and productive operation. However, it is still our position that
the performance of dead work repairs on a seven day week basis is
in violation of the Agreement. Therefore, we have no alternative
but to continue handling the dispute as provided by the Railway
Labor Act.
Form 1 :^. ::-~-d No. 7068
Page 3 ~i:~:ri'~-~ :. Nv ~, 6342
2°=~:~:~a-MA-' ?5
"With respect to our pledge not to file claims when (occasionally)
running repair employees are sent in to do re-seal work -- this
pledge will, of course, be honored."
In order to effectuate the seven-,day reseal program in November 1973
Carrier had created four (4) machinist positions, two (2) were established as
Monday through Friday with Saturday and Sunday rest days, and two (2) other
positions, one of which was Friday through Tuesday with Wednesday and Thursday
rest days and the other Wednesday through Sunday with Monday and Tuesday rest
days. The reseal work thus was performed seven days each week during the
period November 24, 1973 to October 20, 3.974. Prior to establishment of this
program and schedule Carrier discussed same with the Local Chairman who protested
that by past practice reseal work only could be performed Monday through Fridays,
but the seven day operation was initiated nonetheless.
As we view the record,
including the myriad Awards provided by the
parties relative to the 40 Hour Week Rule and seven-day position, the Organization
has failed to make out a claim for a violation of Rule 1. We are persuaded
that Carrier has demonstrated that Radnor has been operated for some years on
a seven-day basis and that there was an "operational requirement" to do the
reseal work on a seven day basis. There is some evidence for the Organization
that reseal programs were done on a five-day basis at Radnor in the past. But
this does not rise to the dignity of binding past practice absent clear evidence
that such was mutual, uniform and established methodology, thus indicating a tacit
agreement of the parties. Such a clear showing is not made on the record.
The claim also is premised upon Rules 58, 59 and 60 of the Agreement
which read as follows:
"RULE
58.
RUNNING REPAIRS
Machinists assigned to running repairs shall not be required
to work on dead work at points where dead--work forces are
maintained, except when there is not sufficient running repairs
to keep them busy.
RULE 59.
DEAD WORK
59(a) When a locomotive is held for the following repairs, such
work will be ter med dead work
1. Locomotives undergoing classified repairs
2. While undergoing repairs on drop pit for one or more
pairs of driving wheels.
3. Applying full set of cylinder frame bolts, rebushing
of main cylinders, removing and applying front end
steam pipes or full set of superheater units.
Form 1
w ~
.q~r. 7068
Page 4 Docket No.
6842
2-L%rN-MA °' 7 6
4. Annual inspections and flexible stay bolt caps.
5. Full set of tires.
b.Flues - 35 or more.
7. Repairs to firebox sheets or shell of boiler, such
as patches or 'heavier work.
59(b) The foregoing is to apply to such shops as DeCoursey,
South Louisville roundhouse, Corbin, Ravenna, Boyles$ Radnor and
Mobile, where deadwo:rk forces are now established.
59(c) At other points where classified repairs are not being
made, this rule will not apply; but in the event it is decided
to make classified repairs at other points, this rule shall apply.
RULE 60.
DEAD
WORK
AND
RUNNING REPAIRS
Dead-work forces will not be assigned to perform running repair
work, except when the regularly assigned running repair forces
are unable to get engines out in time to-prevent delay to train
movement."
The Organization urges that the reseal programs undertaken a t Radnor in 1973 - 74
fall squarely within the definition of "dead work" as that term is defined in
Rule 59 and that Carrier thereby violated Rule 58 by assigning ?'running repair
forces'? rather than "dead work forces" to do that work. Carrier answers that
Rule 59 is a steam locomotive rule by its very terms and does not apply to the
instant reseal program or diesel locomotives. The Organization retorts that
the parties and this Board must interpret the Agreement as a living document
and construe it in light of 'the diesel age by applying it to heavy repair
work, such as reseal programs, on diesel locomotives.
The positions argued herein by the Organization relative to Rule 59
are well taken, ably presented and not without considerable merit. But in the
facts of this record and in light: of many precedent Awards we cannot bring
ourselves to engage in the degree of "gap-filling" and "modernizing" of this
bilateral Agreement which the Organization seeks. Were we to do so it surely
would be usurpation of the rights and responsibilities of the parties to negotiate
their own Agreements.
See Awards 6091, 6092s X354, 6614, and Third Division
19239. We are especially persuaded to this view by the conceded facts that the
Organization has sought in negotiation to modernize and update Rule 59 to make
it applicable expressly to diesel locomotion but has been rebuffed. We cannot
by interpretation place the Organization in a position it could not obtain
through negotiation. Finally, we note that Rule 59(a) (1) references "classified
repairs" but that term was nowhere defined in the record by either of the
parties and we search the Agreement in vain for definition of such terminology.
In the face of this void in the record we may not assume or speculate that
Form 1
Pa ge 5
Award No. 7068
Docket No. 6842
2-L&N-MA -' 76
59 (a) (1) would provide adequate ground to support this claim. On the basis
of all the foregoing; therefore, we must dismiss the claim for lack of Agreement support.
A WA R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of June, 197b.