Form 1 NATIONAL RALLROAD ADJUSTMENT BOARD Award No. 7997
SECOND DIVISION Docket No. 7921-T
2-MP-CM-79
79

The Second Division consisted of the regular members and in addition Referee Herbert Z. T'larx, Jr. when award was rendered.

System Federation No. 2, Railway Employes'

Department, A. F. of Z. C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Missouri Pacific Railroad Company

Dispute: Claim of Employes:

1. That the Missovri Pacific Railroad Co_apany violated Article V of

the Agreement of September 25, 1-964, as amended Deco=iber 5, 175,

when other than caz^n:en inspected, coupled air hose, and made brak.e

test on train departing "che i:Assouri Pacfi.:E'ic Ra-'Llroad Company's

departure yard at 21st Street, St. Louis, Mj.ssou.rv, Febri;.ary 20,

1977, starting at 1:10 p.m. with engine No. 1640 and. thirty-two

(32) cars, departing at 1: 45 -.P--m.

2. That accordingly, the Missouri Pacific Railroad Company be ordered

to compensate Canran Kenneth :E3lyzes, who was working on adjace<rt

truck, in the a:_ount of one (1) hour at the pro rata rate for

Febmaxy 20, 1977.

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 2l, 134.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

This dispute concerns claim of the Organization that a Carman was improperly denied work of inspecting, coupling air hose and making brake test in connection with movement of 32 freight cars from the 21st Street yard on February ?0, 1977. There is no denial by the Carrier that this work was performed by other than Carmen.

The organization rests its case on the authority of Article V of the Agreement of September 25, 196-, and the amendment December 5, 1975, contained in Article VI. These read as follows:
Fo nn 1 Award No. 7997
Page 2 Docket No. 79'1-T
2-MP-CM-'79

" Article V - Coupling, Inspecting, & Testing

In yards or terminals where Carmen in the service of the

Carrier are servicing the train are employed and are on

duty in the departure yard, coach yard, or passenger

terminal from which trains depart, such Inspecting and

Testing as is required by the Carrier in the departure

yard, coach yard, or passenger terminal, and the related.

coupling of air, signal and steala hose incidental to

such inspection, shall be perfortred by the Carmen.

This rule shall not apply to coupling of air hose

between locorotive and the first car of an outbound

train; between the caboose and the last car of an

outbound train; or be-Gn;een the last car in a double-

over and the first car standing in the track upon

which the outbound train is made up."

" Article VI - Coupling, Inspection and Testing

Article V of the Septerlber 25, 190+ National Agreement

is amended by designating the taro existing paragraphs

(a) and (b) and by adding the following new paragraphs

(o), (d), (o), (f) and (g):

(c) If as of July 1, 197+ a Railroad had Carmen assigned

to a shift at a departure yard., coach yard or passenger

terminal from which trains depart, who performed the work

set forth in this rule, it may not discontinue the

performance of such work by Carmen on that shift such work

(and must restore the performance of such work by Carmen

if discontinued in the interim), unless there is not a

sufficient amount of such work to justify employing a

tt

carnaan . . . .

An extensive number of Awards of the Board have dealt with the issues arising from the interpretation of Article V, with marry sustaining and denial awards depending on the circumstances of the disputes involved. In particular, some awards have given determinative importance to the fact that the Agreement refers to "trains", rather than "road trains", which was the phrase earlier proposed by a Presidential Emergency Board but rejected by the organization and which did not survive irrco the finally agreed provision.

The surviving language does however, refer to "trains", and it is on the definition of this word which the Board finds the instant dispute to depend.
Form 1 Award No. 7997
page 3 Docket No. 7921-T
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There is first to be considered a question of fact.

In its initial claim, the Organization refers to the movement as "Eng. # 161+0 departed with 32 cars at 1:1+5 I'M". With this, the Carrier is in full agreement, and nothing in the record of the dispute processing on the property shows to the contrary.

In its submission to the Board, however, the organization refers to "a train consisting of engine No. 16~r0 with thirty-two (32) cars and caboose" (page 3). In its rebuttal, the organization states: "... this train consisted of locomotive, cars and caboose with markers" (page l2).

To this, the Carrier takes exception in its rebuttal when it affix:rs as follows:

"In the handling of the cla:i.n on the property, General Chairuaa,n Daniels at no time alleged air caboose was involved and affi-nnatively stated that the facts were as seated by the Local Chairman. We repeat, the Local Chairman specifically made mention of the mine nunber and 32 cars and it must b e taLen as fact that absence of any xnenticxz of & caboose 1s due to no caboose being used for the movement of the cars.

In this connection, we call attention to the Carrier's statement of page 5 of the Carrier's submission '(n)ormally no caboose is used' on this switch move. The investigation of the claim by the Carrier has affirmed that no caboose was used. Accordingly, the Carrier fixn.7..y objects to the introduction into the record of a new and totally unfounded allegation by the General Chairman that a caboose was used on the cut of cars."

The Board does not undertake to resolve these contradictory arguments in the parties' submissions and rebuttals. Since, however, no mention was made on the property as to the use of caboose and/or markers is not proven (and it is on the Organization that the burden of proof lies).

This is essentially significant in that the Carrier argues that what was involved was not a "train" (whether road or otherwise) but a "cut of cars" such as usually involved in intra-yard movements. On the basis, the Carrier argues that Article V is inapplicable, and, in this particular instance, the Board concurs.

As argued by the Carrier, the Organization recognizes the difference between a "train" and a "cut of cars". Reference is made to an (unadopted) proposal. by the Organization in 1962 as follows:
Foam 1 Award No. 7997
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2-r:P-CM-' 79
"The coupling and uncoupling of air, steam and signal hose,
testing air brakes and appurtenances on trains or cuts of
cars in yards and terminals, shall be carmen's work."

The Board finds that the movement involved herein was that of a "cut of cars" from one yard to another. While Carmen are used for air hose work in connection therewith at times, there is no grant of exclusive jurisdiction as in Article V in reference to "trains" as provided in that Agreement language.

Support of the Board's position in this instance is :Found in Award No. 5076 (Bitter ) which states

"Therefore, this Board finds that the particular cut of cars here involved sc-as a movement/ within tha terminal limits from one set of Carrier tracks to another "e-% of Carrier tracks, and dial not involve a departure of any kind. Therefore,

Article V has no application in this instances See Awards

5368~ 5320> >535 and 5550a11

By distinction the Board's susta.in!_ng decisf -on in Award No. 5367
(Bitter) dealt; ·,aith "a transfer train consisting of an engine, forty-eight
i) cars and a caboose" (emphasis added).

The Organization has failed to prove that the movement in question was a "train" by commonly accepted definition and thus cannot mere a convincing case of the applicability of Article V.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUST2·=1 BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

Byy

~--

o emarie Brasch - Administrative Assistant

Dated a Chicago, Illinois, this 11th day of July, 1979.
LABOR MEMBER'S DISSENT TO ATr'TARD NO. 7997, DOCKET NO. 7921-i
The majority had before it three (3) sustaining awards on disputes between the same parties. Two of those disputes involved the same yards, i.e., Dupo, Illinois to Twenty-first Street Yard in St. Louis, Missouri and Twenty-first Street Yard to Dupo.Yard..
This Board has long held that precedent awards, particularly between the same parties, should be followed so as to offer guidance rather than utter chaos. Awards supporting that theory were also before the Majority.
The Majority, however, chose to place its own interpretation of what constitutes a "train", acknowledging at the same time that Article V of the September 25, 1964 Agreement is not restricted to "road trains" as alleged by the Carrier. The Majority's interpretation of a "train" would require that a "caboose" be included in the consist. But a caboose is attached fcr the convenience of the crew. There is nothing in any agreement or regulation that a caboose be attached before a cut of cars becomes a "train". It would be a shallow agreement indeed if its provisions can be circumvented by simply removing a "caboose".
We believe the interpretation placed on the word "train" is misguided and direct the Majority to award 5676 which was cited in support of its position. The facts were much different where the movement was from one set of track to another as opposed to moving from one yard to another as in the present case. There is quite
a distinction, which requires our dissent.

C. E. Wheeler

Labor Member