Form 1 NATIONAL RAILROAD ADJUSTMENT bOhk,.9 Award
t~
,TCOND DIVISION Docket No. 6956
2-T&P-CiAm; 76
The Second Division consisted of the regular members and in
addition Referee Martin I. Rose when award was rendered.
( System Federation No. 121, Railway Employee'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( The Texas and Pacific Railway Company
Dispute: Claim of Employes:
1. That the Texas and Pacific Railroad Company violated the
controlling agreement, particularly Rules 83p 84, 22 (a) and
(e). When Cayman Helper was assigned to perform carman mechanic's
work at Marshall Texas on July 3, 1974.
2. That accordingly, the Texas and Pacific Railroad Company be
ordered to compensate Cayman W. L. LaRue in the amount of eight
(8) hours at the overtime rat? for July 3, 1974.
Findings,',,
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employs 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 were given due notice of hearing thereon.
The claim is predicated on the contention that on July 3, 1974, Cayman
Helper Richardson was used improperly to perform carmen's work on the repair
track at Marshall, Texas. The work in question performed by Mr. Richardson
consisted of removal of cotter keys, springs, journal bearings, key bolt wedges,
key bolts, in applying four pairs of wheels to freight car ACFX 57413. According
to the Carrier, Mr. Richardson was instructed to assist Cayman Hayner in making
repairs on this freight car and performed the disputed work in assisting Cayman
Hayner in applying the four pairs of wheels. .In the performance of this work,
Helper Richardson and Cayman Hayner worked on opposite sides of the car.
The Employee argue that by permitting the helper to perform the work in
question, Carrier violated Rule 83 of the controlling agreement, that Rule 84
confines the helper's function to helping the carmen and apprentices whereas, in
the instant case, the helper worked alone on one side of the car performing the
same work as the carman performed on the other side of ~~e car, and that Rule 22(a)
restricts the performance of mechanic's work to mechanics
and
apprentices.
Fore 1 Award No. 707$
Page 2 Docket No. 6956
2-T8rP-CM° ` 76
It is the
position of the Cazbiar
:hat the disputed work performed
by the helper in connection with
assisting a carman
to apply the four pairs
of wheels to the freight car is not work specifically reserved to Barmen cinder
Rule 83 and that, as a matter
or
practice,, such work has been performed by
carmen,helpers assisting carmen. Alternatively, Carrier argues that even if
the disputed work was specifically reserved to carmen, Rule 84 contemplates
that the helper perform mechanic's work provided the work is done while
assisting the carnaxa. Carrier also disputes I-he monetary aspect of the claim
on the basis that the
claimant lost no time or y and payment
is claimed at
the punitive rate for time not worked.
Well settled principles require the Employee to satisfy the burden of
establishing that the disputed work is reserved to
carmen
by reason of rules
of the controlling agreement or by acceptable practice on the property. In this
respect, the Employes have bottomed their case entirely on the aforementioned
agreement rules which they contend establish the validity of the claim. In
support of this position, Second Division Awards 1273, 1486 and 6187 are cited.
These cases hold that the removal of parts, such as cotter keys, springs, journal
bearings, key bolt wedges, essential in connection with the applying
of
wheels
to a freight car is work reserved to carmen and may not be properly performed
by a carnein helper working opposite a carman on the same work.
Carrier argues that these awards are inapposite in that they were
rendered on other properties having different rules and practices. We do not
find this
view of
the cited cases persuasive.
We have examined these awards with care and
firs
that while they were
decided on other properties, the issues presented, the contentions
on
both
sides including assertions of past practice by the carriers, the rules of the
agreements cited in connection with, the work of carmen and carmen helpers, and
the work in question, were substantially the same as, and in some instances
actually identical to, each of these critical factors in the instant case. It
is clear that the questions presented here were actually litigated and necessarily
decided in those cases.
No persuasive reason is suggested, or appears, to justify our departure
from these prior decisions
of
this Division. On the contrary, the interests
in stability, uniformity and security in relation to the application of substantially similar or identical rules strongly dictate that we should adhere to
them. For these reasons, we
find
accordingly.
Since the work in question was lost to.carsen by reason of the violation
of the agreement, a monetary award at the pro rata rate, no time having been
actually
worked,
is appropriate as remedy..
A WA R D
Claim sustained in accordance with Findings.
Form 1 Award No. ?078
Page 3 Docket No. 6956
2-TAP-CM-'76
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order Qf Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
IQA~,
_.4 .4 & -1
Ze-4
Rosemarie Brasch Admipistr4*ive AssisWt
Dated at Chicagop I17.inolsp this
end
d4Y
of
July,
176. .
CARRIER MEMBERS' DISSENT TO AWARD ?078, DOCKET 6956 (Referee Rose)
We dissent to this erroneous award. The maters of record which
clearly establish this clam is invalid were discussed in the memorandum
submitted by the Carrier Members. That memorandum is incorporated by
reference in this dissent.
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