Form 1 NATIONAL RAT LROAD ADJUSTMEPIT BOARD Award No.
771+7
SECOND DIVISION Docket No.
7629
2-C&NW-CM-' 77
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No.
76,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Chicago and North Western Transportation Company
Dispute: Claim of FLnployes:
1. That the Carrier violated the controlling agreement, when on
October
18, 19, 20,
21, 22,
25, 26, 27,
and
28, 1976,
it instructed
and/or authorized employes of Ukee Incorporated to make repairs
and dismantle Chicago and North Western Transportation Company's
automobile device cars at Oliee Incorporated located at Bylsby
Avenue, Green Bay, Wisconsin.
2. That the Carrier be ordered to discontinue these violations and
pay Cayman A. T. DetnouLm eight
(8)
hours pay at rate of time and
one-half for October
18, 19, 25,
and
26, 1976;
Caiman C. B.
Hendrickson eight
(8)
hours pay at time and one-half rate for
October
25, 1976;
Carman Scott Jensen, eight (8) hours pay at
rate of time and one-half for October
20, 21, 27,
and
28, 1976;
Carman J. W. Kreuser eight
(8)
hours pay at rate of time and
one-half for October
26
and
27, 1976;
Cayman T. A. Seller eight
(8)
hours pay at rate of time and one-half fox October
25, 1976;
and
Caiman Bruce Voelker, eight
(8)
hours pay at rate of time and
one-.half fox October
25, 1976.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute mined. right of appearance at hearing thereon.
This dispute involves repairs to 2.3 flat cars leased by the Carrier from
the B.R.S. Railroad Eduinment Associates (tire The Carr-.*i.er determined
that the cars r e;lui.red repair work. The cads were sent to Ohee, Incox°po,ratc=d,
by the Carrier for such repair. Okee is a firm selected for this purpose by
the Lessor.
Form 1 Award No,
77+7
Page 2 Docket No.
7629
2-C 8cNW-CM-
t
78
Claimants argue that this work should have been performed by Carrzen
employed by the Carrier, and claim pay because of. the Carrier's failure to
give them the work.
The sole thrust of the Carrier's defense is that the leased flat cars
are the property of the Lessor and, as such, are under the Lessor's control
as to the method and place of repair. In support of this, the Carrier relies
on the teams of its lease abreernent ,.ith the Lr,;;sc>r.
The Board has found in many ,previoms instances that, where it is clear
that work is beyond the control and direction of the Carrier, such Carrier
cannot be held responsible for giving such wor%i to eTriployes covered by
agreements with the Carrier. Award Tjos.
I+667
(Seff), I+129 (Anrod), and
Y+169
(Harwood) deal with :i.nstances in which the employer cannot be held
accountable for work assignment where the work itself is the responsibility
of another employer. Award
Pro.
688+
and Third. Division Award Nos. 20>29
(Lieberman),
19369
(Fdget%),and >21+6 (Boyd) deal. with the invulnerability of
the Carrier in instances where the work is not for its benefit, was never
controlled by the Car~:ier., and/or sitrply does not belong to the Carrier.
Such principles ha,vinU been established, the Board nevertheless finds .
that the fact situation in the instant case simply does not rest comfortably
in this niche. Carrier submitted, as its defense, the text of the lease
agreement with the Lessor. The Organization raised objections to the use of
such agreement i n Carrier's defense, claiminit was not offered to the
Organization on the property and further is an unsigned, undated doctunent.
Holding aside a ruling on such objection ( for reasons which
ieLll
become
obvious below), the Board fails to find that the lease agree_~nent says what
the Carrier purports 9t to say -- namely, that all repair work to the leased
cars is under sole control of the Lessor.
It is the Board's function to interpret and rule upon agreements between
parties on matters properly before it under the Railway Labor Act. The Boarc_
is not the fount
of
all wisdom on leasing agreements or other business
contracts in which a carrier ?nay enSa~.;e. In this instance, however, the
Carrier relies entirely on such lease agreement for defense of its action
under the agreement with. the Organization, and so it must be examined by
the Board. The Carrier refers in particular to the first sentence of
paragraph
8
of the agreement, which reads:
"Lessor shall be responsible fox the cost and expense
of all repair work which is imposed upon the Lessee
(the carrier) under interchange rules."
To the Board, this says that the Lessor is financially responsible far
charges reach.=i.n; -the Carrier when repair work is performed by another. carrier
"under interchange rules". It is not definitive as to whether the Carrier or
the Lessor has control of repa:.~_r :work when rnte;c°chan ge rules and other
carriers are not involved.
Form 1 Award
DTo.
77+7
Page
3
Docket No.
7629
2-C &NW-CR7-'
78
On the other hand, paragraph
6
of the same lease agreement reads as
follows
"6.
Lessee twill .preserve the cars in good condition and
will not in arty gray alter the physical structure of the
cars without; the approval in writing of the Lessor. At
the termination of this lease, Lessee will return all of
the cars to the Lessor hereof enpty, in the same good
order and condi tion as the cars were in when they were
delivered by -the Lessor to the Lessee, ordinary wear
and tear excepted." (F,mahasis added)
This would appear to place? responsibility to "preserve the cars in good
condition" and to return them ":in the same good order and condition" upon
the Carrier. At the least, it does not say that repairs will be made as and
where directed by the Lessor.
In the circumstances of this dispute, the Carrier has the burden of an
affirmative defense to prove that its axxangeruent with its Lessor is what
is says it to be. Fox the reasons advanced above, the Carrier has failed to
provide such evidence, and its position cannot be upheld. See, similarly,
Award Nos, 6529 ( S hapi xo ) , 7361 (Twomey) and
737+ ( v
Tei s s ) .
The Claim will be sustained, except that, following previous reasoning
and decision by this Board, claim for pay shall be paid at the straight time
rate, rather than at the punitive rate as claimed. The Organization and the
Carrier axe directed to detex~_ine the appropriate amount of work time involved
under the Claire fox assignment of pay to the Claimants.
A Zv A R D
Claim sustained as indicated in the Findings.
NATIONAL RAILROAD ADJUSTPENF1' BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
x
~ii`~seow;ci_e Brwsci?Y- Ad.-tlirAistt^ati -.ve Assistant
Dated tat Chicago, Illinois, this 29th day of November,
1978.