Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8140
 SECOND DIVISION Docket No. 77 79
 2-N&W-CM-' 79



Parties to Dispute: ( (Carmen)
 (

Dispute: Claim of Employes:



Erindings
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.

The thrust of the Organization's claim goes to certain functions, performed by employees other than Carmen, involving coupling air horses and performing air tests on trains at the Carrier's Nonvalk, Ohio train yard facility. The Organization claims exclusive right to such work under Rule 64--(Classification of `s'lork, (B) of the applicable Rules Agreement, and Article V of the September 25, 1964 Agreement ("Coupling, Inspection and Testing") as amended and expanded by a December 4, 1975 Mediation Agreement, particularly paragraph (c). Such Agreement also added paragraphs (d) (e) (f) and (g) to the original Article.
 .

 Form 1 Award No. 8140
 Page 2 Docket No. 77'79
 2-N&,,,Y-CM-' 79

 A reading of Rule 64 (B) offers no support to the Organization's claim of exclusivity. Article V, as originally written, identified certain work as Carmen's -- "coupling of air, signal and steam hose" where such work was incidental to "inspecting and testing of air brakes in the departure yard, coach yard, or passenger terminal . . . .", but qualified such work to facilities where "Carmen are employed and on duty" and where such work "is required by the Carrier." Paragraph (c), as amended by the December 4, 1975 Mediation Agreement established that:

The Carrier had Carmen assigned to both first and second shifts at the yard as of July 1, 1974; subsequent thereto, it abolished the second shift job, without dispute by the Organization. The work in question herein eras conducted past the first shift hours -- those worked regularly by the Claimant and well after the termination of the second shift operation.

 There is nothing adduced in the record to demonstrate that the conditions set forth by Article V, as amended by the December 4, 1975 Mediation Agreement, were present here that would reserve such work for the Claimant. A test of part, of such criteria was established in Second Division Award 5368. The absence of a Carman on the second shift, apparently due to an insufficient amount of work, and the lack of exclusivity under Rule 64 (B) foreclose favorable consideration of the Organization's claim herein.





National Railroad Adjustment Board

 BY .L.-A - e - -~-'C~

 emarie Brasch - Administrative Assistant

 Dated YChicago, Illinois, this 17th day of October, 1979.

LABOR MEMBERS' DISSENT TO AWARD Na..814-0,- DOCKET NO. 7779
        The Majority erred when they stated that:


b .

 .,. , ` 4 "The work in question herein was conducted
    past the first shift hours ...those worked

    regularly by the claimant and well after the

    ONiii

          N termination of the second shift operation."

The Majority failed to review and give proper consideration to the unrefuted Employes' Statement of Facts found on pages 3, fir, and 5 of Employes' Submission which establishes that incidents alleged by the Employes to be in violation of the controlling Agreements occurred on the second (2nd) shift on August 31, September lr 2, 22, 1976 and on the first (1st) shift (i.e. 6:30 a.m. to 2 : 3 0 p.m., Monday through Friday), which was the job as s iqnment ie 1d. bvtthe claimant at the time of the violations cited, on Septeriber 7, 13, 20, 22, 1976.
 The Majority has failed to consider the fact that in the :'Latter instances mentioned herein the claimant was on duty anti in the departure yard while the infractions of the controlling Agreement occurred.
 The Majority continues its erroneous deliberations by stating in pertinent part:

              "The carrier had carmen assigned to both first and second shiftscat the yard as of July 1, 197«; subsequent thereto. it abolished the second shift job, without d.inpute by the Organization."

    The organization may not have disputed the abolishment of the second shift position, which was abolished subsequent to July 1, 1974 (December 28, 1974), but the Board failed to consider

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    the fact that the Amendment of Article V of the September 25, 1°I64 Agreement, coupling, Inspecting and Testing, did not become effective until sixty (60) days after the effective date of the December 4, 1975 Agreement, therefore, the Organization could not have disputed the abolishment of the second shift job at the time it was abolished. The Agreement providing for the restoration of the performance of this type of work to the Carmen's Craft did not exist on December 28, 1974 however, with the advent of this Agreement the Carrier was obligated to restore the work to the Carmen's Craft, and if there was sufficient work to employ a carman on the second shift the position abolished December 28, 1974 should also have been restored.

    In view of the above undisputed facts of record, the Majority has failed to give all these facts proper consideration, and has rendered an untenable award detrimental to the Organization's contractual rights.


          Therefore, Award No. 8140 is palpably erroneous.


                                                  ~/ tl~.s L


                                      JC. Clementi

                                      ""-

                                      Labor Member