Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8028
 SECOND DIVISION Docket No. 7529
 2-SCL-CM- t 79



Parties to Dispute: ( (Carmen)
 (
 ( Seaboard Coast Line Railroad Company

 Dispute: Claim of Employes:









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.

Carrier had complaints of delays of tank cars located. at Hercules Powder Company at Fran,.k:l.in, Virginia. Carrier had no foremen or caxxnen stationed at Franklin, but had both stationed at Portsmouth, Virginia, an inspection point, thirty-five (35) miles away. Carrier sent D, L. Pet-vray, General Foreman, from Portsmouth, Virginia the 35 miles to Franklin, Va., Carrier stating that there were "Reports of an unusual nuffaer of hot boxes on tank cars en Rocky Mount Division." General Foreman PetTrray was directed to look into the matter of tank cars which were being held at tree Hercules Plant in Franklin, Virginia. fox' extended periods of time. On September 10, 1875, hDr, Petsray went to Franlai.n and made a spot check of a n<uxaber of tank cars to determine if there was a problem with these cars which would require attention before the cars were loaded. After checking a sufficient number of cars to determine that mechanical attention would be required, he returned to Portsmouth and recommended that a program be set up to service cars at
 Foam 1 Award No. 8o29
 Page 2 Docket No. 7529
 2-SCL-CM-'79

 Franklin. Employes appeal the Finding of W. Z. Winsted that Foreman Petway's action was within the scope of Ruse 26(b) of the Agreement, reading as follows:



The pertinent part of Rule 100, also cited by Employes, reads as follows:


Under Rule 26(b ) had Foreman Petway been stationed at Franklin and had no Carmen been stationed there, we would have had a different case from the present fact situation, but in the present case Forcman Pet-v,-a.y and Carrnen both were stationed at Portsraaugh, Virginia (but neither at Franklin) and it would have been just as easy for Carrier to have sent a Cayman to inspect for hot boxes (which was typical Carmen's work) as to send a General Foreman.

 However, the following year after the Winsted cornnunication by Carrier quoted above, in a subsequent contention dated June 26, 1g76, Carrier contended by its Assistant Vice-President, that General Foreman PetT~ray made a determination that it was necessary to set up a program at Franklin to service cars at that location and that was strictly a management decision, and that Rule 26(b) recognize,-, that supervisory personnel may perform work consistent with their duties. The writer agrees that whether or not it eras necessary to set up a program at Franklin to service cars is a management decision, bud; the first ruling by Carrier in this case admitted that Petway was sent to Franklin to inspect tank cars for hot boxes and such prior contention of Carrier that he went to inspect for hot boxes shows that General Foreman Petway was sent for a dual purpose, to do both inspection work and managerial work.

 Carmen had no power to do the managerial work and the General Foreman was prohibited by the article; of agreement between Carrier and Employes, from doing the Carmen's work. He should have carried a carman with him to do inspections if he was basing his managerial decision upon the need for inspections. The record shows that while at Franklin, Va.,, General Fore-man Petway inspected tank cars by opening journal box lids, checking the boxes for oil, and using the inspector's cut journal indicator, inspected axle journals for pits and cuts.
 Form 1 Award No. 8029
 Page 3 Docket No. 7529
 2-SCL-CM-' 79

 Employes contend that Foreman Petway knew before he left Pbrtsmough to go to Franklin, Virginia that he was going to inspect cars because he carried an inspector's cut journal indicator with him, "This is a gauge peculiar to Car Inspectors".

 Carrier contends that if the inspection General Foreman Petvray made of the cars was sufficient to constitute an inspection as contemplated by Rule 100, even so, Carrier has not conclusively shown that such work is not reserved exclusively for Carmen. A reading of the rules indicates that such inspections are reserved. for Carmen except in those instances outlined in Rule 26(b) which does not prohibit foremen in the exercise of their duties, to perform work, One of the cases cited by Carrier gives an example of a Foreman doing car work to demonstrate to Carmen how the work should be done. A Foreman running an instruction class would not seem to us to violate the spirit of the agrcennent but that is not the situation presented here. Had there been a Foreman stationed at Fratikz.'tin, who had received a caaJ. from Managexcient Headquarters to tel:L why those cars were held up, and no mechanics stationed at Franklin, we would have a different fact situation. 3~ut in this case, there were axrAple Foremen and Carmen stationed 35 miles army and at a place where the Carrier maintains a road truck at Portsmouth, Vir ginia where er.rploye Carmen employed in the For'csmouth shop and yard are used regularly for road -trip work. It would have been just as easy for the General Foreman, ix" he were going to Franlain to make a management decision on a broad question of whether an operation should be set up at Franklin, which trip would require car inspections at Franh.J.vin, to take a Carman along to do the Carmen's work - to get facts as to the condition of the cars; as the General Foreman, he sought other infornata.on that might have been available as to whether the railroad or the Hercules Powder Company was responsible for the delay of cars at Fran-klin.

 The determination of whether Hercules Powder Company was responsible for the delay of the cars would have been clearly outside the scope of employment of Carmen, and it would have been necessary for someone of a different category of emplo;yent, to go, to determine the condition of the cars theamselves, then report to the General Foreman on the cars' condition so that the Foreman could weigh that information in making the recommendation that he did make.

 The Record shows that several categories of information were apparently needed for the Carrier to make a decision as to what would necessarily be a considerable expense, to set; up an additional operation 35 miles away from Portsmouth. It required a Carman's inspecting ability plus a General Foreman's managerial competence, for the decision. The contract between the Carmen and the Carrier required the cars to be inspected by Carmen., if Management wanted that information in making the: managerial decision as to what was needed to end the expensive delays at the Hercules Powder Plant. The trip from Franklin to Portsmouth required only faun hours and was a matter of considerable importance as General Foreman Fetway recoxmnended that a separate operation involving Foremen and Carmen be set up at Franklin to serve the Carrier's patron, Hercules Powder Company at Franklin.
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 Page 4 Docket No. 7529
 2-scz-CM- t 79

 The record shows that employe Carman A. C. Johnson was off duty, ready, able and willing to accompany the Foreman had he been called and that claimant and other Carmen employed in the Portsmouth Shop and Yard were used regularly for road trip work.

 Each ease stands on the facts in that particular case, and on reading this entire record, and studying the statements by which the Carrier and Employes would distinguish the authorities from the Second Division and Third Division cited in support of their respective positions, we are of the opinion that these findings would be unnecessarily prolonged if we took the time and space to discuss and point out differences in, and distinguish the various decisions by both Second Division Boards and Third Division Boards cited by the parties. We believe the facts in this case d.istin4;vishable on some ground in each case, from the opinions cited, and we have reviewed the facts in this case extensively, rather than cite opinims in other cases, as we believe the set of ueouh_ar facts in this case makes the law of this case, and that evidence before us is clear and compelling enough to indicate a violation of the controlling agreement.




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

                _`~-


By ~~LL~-~
      osemarie Brasch - Administrative Assistant


Date at Chicago, Illinois, this 8th day of August, lg7g.