Form 1 NATIONAL RAILROAD ADJUST= BOARD Award No. 7244
SECOND DIVISION Docket No4 7010-T
2-BNI-CM-'77
The Second Division consisted of the regular members and in
addition Referee C. Robert Roadley when award was rendered.
( System Federation No. 7, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Burlington Northern Inc.
Dispute: Claim of fmployes:
1) That the Burlington Northern Inc. violated the provisions-of
Rule 98(c) when it assigned Laborer Robert Jodl to perform carmen
helpers' work on cabooses at Northtown Caboose Track, Minneapolis,
Minnesota.
2) That accordingly the Carrier be ordered to compensate the following
named carmen helpers eight (8) hours each at the time and one-half'
rate on each of the claimants' rest days shown following the
claimant's name:
CLAIMANT DATES OF CLAIM
M. R. Hammer may 16-17-24-25 of 1974
June 13-14-21-22 of 1974
P. L. Ramirez May 18-25 of 1974
June 3-8-15-22 of 1974
T. N. Richardson May 20-27 of 1974
June 3-10-17-24 of 1974
C. K. Peterson May 12-19-26 of 1974
June 2-9-16-23-30 of 1974
and to
continue on
each subsequent rest day that Laborer Robert
Jodl performs carman helpers duties in the absence of claimants.
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 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.
Form 1 Award No. 7244
Page 2 Docket No. 7010-T
2-BNI-CM-'77
Parties to said dispute waived right of appearance at hearing thereon.
On April 10, 1974, a Laborer employed at the Carrier's
Northtown Yard - the consolidated yard for the Twin Cities terminal, was
assigned to the work of cleaning and servicing cabooses. Petitioner has
averred that such work assignment constitutes an infringement upon the rights
of the Carmen who perform this work. Petitioner alleges that such work
assignment violated the provisions ct Rule
98(c)
and also that it violated
the long standing past practice of assigning the work of servicing cabooses
at the Northtawn Yard Repair Track exclusively to ca nnen helpers and/or
carmen:
Rule
98(c) is
the outgrowth of negotiations between the parties prior
to and in anticipation of the merger of the former carriers now comprising
the Burlington Northern, so as to arrive at a consolidated Agreement covering
all of the Shop Craft Organizations. Rule
98(c)
states as follows:
"It is the intent of this Agreement to preserve preexisting rights accruing to employees covered by the
Agreements as they.existed under similar rules in
effect on the CB&a, NP, GN and SMS Railroads prior
to the date of merger; and shall not operate to
extend jurisdiction or Scope Rule coverage to agreements
between another organization and one or more of the
merging Carriers which were in effect prior to the date
of merger."
The matter of the application and/or interpretation of Rule
98(c)
was
the subject of extensive treatment by the Second Division of this Board in
its Award No.
6867,
involving the same Carrier and the Sheet Metal Workers.
It would be redundant for the Board to-'review in detail the rationale
expressed in that Award which involved-an issue similar to the one at 'bar
except for a different craft of employees. The Board, suffice to say,
concurs in the reasoning set forth in that Award. Of particular significance
to the subject case is that portion of Award No.
6867
that stated:
"Since the petitioning Organization has not demonstrated
to this Board that the work in question is reserved to the
Organization exclusively by clear, definite and unambiguous
language of a rule, unencumbered by other rules of the
agreement, then in order for us to sustain the instant claim
the Organization must demonstrate that ..(the).. work .....
has historically and exclusively been performed by the .....
craft system-wide. By system-wide we mean that the burden of
proof is on the Organization to show exclusivity of practice
system-wide ". (emphasis added)
Form l Award No.
7241+
Page
3
Docket No.
7010-T
2-BNI-CM-'77
It should b e noted that, in the subject case, Petitioner did not
attempt to argue that the work of servicing cabooses was reserved exclusively
to the organization by language of a rule, nor did Petitioner assert
exclusivity of practice system-wide. All that Petitioner did assert was
that the questioned work had been historically performed by Carmen Helpers
and/or Carmen at one point on the Carrier's system - the Northtown Yard,
to the exclusion of all others.
If, for some reason, the Board was to depart from the concept that Rule:
98
(c) has system-wide application only and, therefore, consider this case
on the theory of "point" application we would be unable to resolve the dispute
on its merits due to major and significant conflicts in the "evidence"
presented.
For example, Petitioner, in its rebuttal submission (pages 2 and
3)
asserts that, in spite of the merger,.the old Northern Pacific Northtown
Yard is, in essence, the same yard as is now known as the Northtown Yard.
while the Carrier asserts it to b e a new, consolidated, facility that cannot:
be identified with any predecessor road (Carrier rebuttal page
7).
Additionally,
in an effort to bolster its position regarding "ownership" of the questioned
work Petitioner has submitted written statements from four employees in the
Carmen's craft to the effect that they have performed the work during the
period of the claim and before. In this vein, the Carrier has submitted a
statement signed by four former NP Yardmen stating that prior to April 10,
1974
it had been common practice for Yardmen to perform much of the servicing
of cabooses at Northtown Yard.
Regarding the matter of conflicting evidence the Board has ruled in
numerous instances as follows:
" .... It is settled beyond question that this Board does
not resolve conflicts in evidence. On the record before
us we are unable to resolve this conflict, and since the
burden of proof is on the Petitioning Organization, we are
. required to deny this claim." (see Second Division Award
No.
7051;
also
6964, 6876, 6856
and others)
The Board has carefully reviewed the entire record in this case and,
for the reasons stated herein, finds that, Petitioner has not met the burden
of proof either to the applicability of Rule
98(c)
to this dispute or through
probative evidence sufficient to justify a sustaining award. We will
therefore dismiss the claim.
A W A R D
Claim dismissed.
Form I
Page
Attest: Executive Secretary
National Railroad Ad~iustment Board
Award No.
7244
Docket No. 7010-T
2-BNI-CM-'77
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
B;
-losemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of March,
1977.