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Parties to Dispute:

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in addition Referee Walter C. Wallace when award was rendered.

Award No. 7+95
Docket No. 7218
2-SPr-CM-'78

System Federation No. 114, Railway Employer'
Department, A. F. of L. - C. I. 0.
( Carmen )

Southern Pacific Transportation Company

Dispute: Claim of Employer:

1 - (a) That the Southern Pacific Transportation Company, herein a"'ter referred to as the Carrier, on July 31, 1975 and August 1, 2, and 3, 1975, knowingly violated Rules 33(a) and 104, of the MP&C Department Agreement in using other than carmen on July 31, 1975 to work on cars:

WCTR 100658 WCTR 100560 WCTR 100630 WCTR 100518 WCTR 1007+1 WCTR 100595 WCTR 100511-2 WCTR 10062+

WCTR 100889 WCTR 100584 WCTR 100707 WCTR 10072+ WCTR 100b99 WCTR 100713 WCTR 100657 WCTR 100703

and on August 1, 2, and 3, 1975 violated Rules 33 (a) and 104 of the MPG Department Agreement in using other than taxmen to work on cars August 1, 1975, the same sixteen freight cars, as previously identified, were again spotted on the South Corral Track. Also, on August 2 and 3, 1975, the Carrier knowingly violated Rules 33(a) and 104 of the MP&C Department Agreement in using other than carmen to work on six freight cars:

WCTR 100030
WCTR 1007+1
WCTR 1005-2

WCTR 100707
WCT R 10051+
WCTR 100886

(b) That Freight Cayman M. K. Fox (furloughed ca,rman helper), upgraded, hereinafter referred to as the Claimant, be compensated in the amount of two hours, forty minutes (2'x+0") at the punitive rate for each one (1) of the forty-eight (48) freight cars repaired by other than carmen during dates of July 31, 1975, and August 1, ?_, and 3, 1975, account of said Agreement rules violations.

Findings:

The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Award No. 7+95 Page 2 Docket No. 7218 2-SPr-CM-'78 The carrier ox carriers and the employe ox employes involved in this dispute axe respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193+. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The essential facts involved here are not in dispute. Freight cars owned by the White City Terminal Union Railroad (WCTU) all recently purchases from Pacific Car and Foundry were to be equipped with a coupler cushion device manufactured by Freight Master. A11 of these companies axe independent of and unrelated to the carrier. A ntunber of these couplers were found defective and required repair on carrier's property under the warranty agreement between the purchaser and seller and manufacturer. The work was so carried out. The claimant is a Cayman who claims the work under the applicable agreement citing Rules 33(a) and 104, the latter being the rule dealing with classification of work fox Carmen. The Board has had numerous opportunities to consider the question raised here: when work is performed under a contractual warranty on carrier's property covering work the manufacturer is obligated to carry out, can the affected craft assert that it has rights to such work, regardless of the fact the freight cars were bought, sold and manufactured by those unrelated to the carrier? We believe the organization's claim should be denied. The organization argues there is no exception to the cited rules which would permit this procedure. We do not believe the agreement should be viewed so narrowly. The awards of this Board are persuasive to the effect that work under these circumstances is not within the scope of the agreement. Award 3660 (Bailor). In a more recent case Award 7236 (Roadley) this Board dealt with a case where the defective cars belonged to the carrier and the work was performed on carrier's property stating:

"There is no question that the work performed was to correct defect recognized as such by the manufacturer, and not a modification or repair as those terms axe generally used, and it is our view that the carrier had the right to seek and expect recourse under the vaxranty. The Board is cognizant of the diligence of all organizations in policing their labor-management contracts so as to preserve the integrity of their scope rules, but, in the instant case, the Board finds that the contentions of the organization are tantamount to an encroachment upon the prerogatives of management."

Form 1 Award No. 7+95
page 3 Docket No. 7218 2-SPT-CM-'78 In that case the warranty work related to carrier's own freight cars and we believe the results axe applicable here a fortiori where the carrier does not own or lease the cars. See Third Division Award 17002 (McGovern) to this effect.

We have reviewed all the awards cited by the organization and they deal, for the most part, with sustained claims where the Carman's scope rule was violated. With one exception possibly, those awards do not involve: work covered by warranty agreements as we have here. The one exception is the Third Division Award 11027 (Hall) and there the work involved work claimed by roofers in the Bridge and Building Division of a different carrier. The claim was sustained and the opinion emphasized the fact they dealt with a 15 year bonded zoom and that was not a valid reason fox contracting out the work, daying:

"... there is no competent proof in the Record that would indicate that this bond would have been available to the Carrier if the work had been done by its own employees."

Here, of course, there is no claim the warranty runs to the carrier.
The carrier is not privy to arty of those contractual relations and the
above award is distinguishable.
The organization makes a few further contentions which we will
consider. It is claimed before this Board that carrier did not introduce
proof of the contractual warranty as part of the record in the :property.
Our review indicates that is correct. But we find there was ample
discussion of the ztra,rxanty agreement on the property and representatives
of the organization even had dealings with representatives of Freight
Master. It is too late to make anything of that argument before this
Board when it was not advanced on the property.
The organization also argues that Freight Master "was agreeable,
even eager, to have the carrier's employees perform the disputed work".The
argument goes on to assert that this fact was neither denied nor refuted by
carrier..- The organization misses an important point here. The carrier
is not accused of depriving the taxmen of the work. It is, rather,
accused of not carrying out contractual obligations to insure that taxmen
did the work. Insofar as this opinion concludes the carrier had no such
obligation under these circumstances, the carrier cannot be faulted if it
did not act as an agent to secure the work fox them.

More important still, the suggestions or thoughts expressed by representatives of weight Master have no binding effect upon carrier. Freight Master is not an agent of carrier and its comments are in the nature of proposals fox compromise ox settlement. On this basis they are neither persuasive nor probative under the long standing views of this Board.
Form 1 Award No. 795
page 4 Docket 1`do. 7218
2-SF'r-CM-' 78

Fox all the reasons stated here we conclude the contract was not violated.

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division Attest: Executive Secretary National Railroad Adjustment Board By emarie Bxasch - Aaministxative Assistant Dated t Chicago, Illinois, this l~+th day of April, 1978.