Form 1 NATIONAL RAILROAD ADJUSTNIETTT BOARD Award No.
7895
SECON~ DIVISION Docket No.
7756-T
2-MP-CM-·79
The Second Division consisted of the regular members and in
addition Referee flbrah~n Weiss when award was rendered,
( System Federation No.
2,
Railway E~nployes'
( Departments A, F. of Z. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company
Dispute: Claim of 'Dnployes:
(~.) That the Missouri Pacific Railroad Company violated Rule 117
of the Controlling Agreement and Article V of Agreement of
September
255 1964,
as amended, when they arbitrarily used Car
Foreman C. Z. Tvloable to inspect and make brake test on outbound
train No.
866
while this train was in track No.
44
of the Settegast
Train Yard, Houston, Texas, July 2.
1976.
(2)
That the Missouri Pacific Railroad Company be ordered to compensate
Carman S. Rodriguez in the amount of four
(4)
hours at the pro
rata rate account this violation.
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 waived right of appearance at hearing thereon.
The parties are in dispute as to the specific events which gave rise
to this claim.
Petitioner asserts that Car Foreman Womble performed caxmen's work in
making an air brake test on an outbound train. As described by the
Petitioner, Car Inspector James was instructed to perform the brake test.
When he tried to communicate with the train engineer, he found the radio
not operating. Foreman Womble then directed James to return to servicing
journal boxes and that he would do the brake test. Car Inspector James
submitted a statement that "the complete test was made by Foreman Womble,
without arty help from myself,"
Form 1
Page 2
Award No. 7895
Docket No. 7756-T
2-MP-CM-'79
Petitioner cites the foreman's action as violative of Rule 117 (Carmen
Classification of Work) and Article V of the September 25, 196+ agreement
which reserves to carmen, in yards or terminals from which trains depart,
the "inspecting and testing of air brakes and appurtenances."
Carrier, on the other hand, disputes that the Foreman performed the
brake test, as alleged by Inspector James. The fact is, Carrier asserts,
that the radio in the caboose was malfunctioning so that Inspector James
could not be heard by the train engineer. In support, Carrier cites
Inspector James' written statement:
"...
I found radio on caboose #1346
dead." The Foreman overhead James' transmission; allowed James to perform
the test; and used his own hand-held radio to relay to the train engineer
that the brake set and release test was successfully completed. Carrier
denied that the Foreman walked.the train to check the brakes, an unnecessary
step since the ground air test had already been done.
Carrier maintains that the Foreman's only work was to relay the message
over his hand set radio, in fulfillment of his supervisory responsibilities,.
Carrier cites Rule 26(a) in this connection:
"This rule does not pro hibit foremen in the exercise of
their duties to perform work."
Carrier also holds that neither mile cited by Petitioner reserves to
carmen the relaying of radio transmissions.
In essence, therefore, we are confronted with a conflict between the
only two individuals in a position to testify as to whether the Foreman
performed a brake inspection after he relayed the results of the set and
release test to the engineer. The conflicting statements as to the facts
are irreconcilable and unresolvable.
Since the (Taestion is unresolved, we cannot conclude from the record
that a violation has occurred. Petitioner has not met the burden of proof.
We must, therefore, dismiss the claim for lack of probative evidence.
A W A R D
Claim dismissed.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUST2~-FENr BOARD
By Order of Second Division
BY __
o~emaxie 13rasch - Idrr~inistrative Assistant
Dated at Chicago, Illinois, this 19th day cf April, 1979.