Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8270
SECOND DIVISION Docket No. 8087
2-CRR-FO-180
The Second Division consisted of the regular members and
in addition Referee Kay McMurray when award was rendered.
( System Federation No. 44, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Firemen & Oilers)
~ Clinchfield Railroad Company
Dispute: Claim of Employes:
1. That the Clinchfield Railroad Company violated.the Controlling Agreezaent,
particularly Rule 1 Scope, when Wrecker Car Attendant Laborer Buford
Rogers, Erwin, Tennessee, was not
called for wrecking service account
of other employes used as wrecker car attendant on the folio-wing dates,
September 10, 1977; September 17, 1977; October 15, 1977; October 21;,
1977; November 13, 1977 and November 15, 1977.
2, That accordingly, the Clinchfield Railroad Company be ordered to
compensate Laborer Buford Rogers in the amount of thirty-one (31) hours
at punitive rate of pay for September 10, 1977; September 17, 1977;
October 15, 1977; October 21, 1977; November 7,3, 1977 and November 1`,i,
1977.
Findings
The Second Division of the Adjustment Board, upon the whole record and al1L
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.
Parties to said dispute waived right of appearance at hearing thereon.
The claimant is a laborer working for the carrier at Erwin, Tennessee. At
the time of the claim, he was working 3n an assignment a-vrarded to him on Novefiber
20, 1975. His duties included cleaning, servicing, and supplying cabooses for
Road Service. In addition to such position, he had another function stemming from
a successful bid in 1958 to a position as Shop Laborer for wreck service. The
latter service was an on-call. service whenever the need arose. The carrier takes
the position that the November 20, 1975, position which arose as a result of a
job abolishment also discontinued his services on the wrecker assignment. The
record indicates, however, that prior to this date Mr. Rogers had fulf'illed both
a job assignment and an on-call position to perform work on the wreck service. These
dual responsibilities continued after the November 20, 1975, assignment up until.
the actions by the carrier which gave rise to the grievance under consideration.
Form 1
Page
2
Award No.
8270
Docket No.
8087
2-CRR-FO-t80
From the record this Board concludes that the grievant, by past practice, is
entitled to the same rights he held prior to the
1975
assignment. In so doing
we rely upon that portion of the scope rule which reads:
"It is agreed that present assignments of work which have
been in practice for a number of years will continue in
effect unless changed by mutual agreement or in accordance
with the Railway Labor Act."
Neither party to this disagreement advances a clear record of past practice
in the area under consideration. It is clear, however, that the grievant had been
used in the position on numerous occasions and was entitled to some consideration.
The record also indicates that laborers from other classes and crafts had been
utilized on occasions when the need or emergency required such utilization.
Consequently, we find that the organization has failed in its requirement of proof
that past practice eras violated in the assignments filled by other laborers.
However, we admonish the carrier that absent any understanding as outlined in that
portion of the scope rule quoted previously, it must adhere in a reasonable mariner
to the assignment of work as outlined by past practice.
Based on the entire record, this Board concludes that the utilization of
supervisors and laborers from other carriers does not conform to normal past
practice and the claimant should have been utilized on those assignments where such
individual performed the work.
A W A R D
Consistent with the findings the claimant shall be awarded eighteen
(18)
hours of pay as claimed. These hours consist of eight
(8)
on September 10 wor:'Ked
by a supervisor and ten (10) hours on September 17 worked by an employee of
another carrier.
NATIONAL RAILROAD ADJUSTMEPTT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
BY ~qs ..
emarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 19th day of March,
1980,