Form 1 NATIONAL 1ZAILftcylD AI~Rr)`I'Mf?iVT BOARD Award No, 8289
 SECOND DIVISION Docket No, 8114
 2-SQO-CM-'80



Parties to Dispute: ( (Carmen)
 (
 ( Soo Line Railroad Company

 Dispute: Claim of Employes:

























Form 1 Award No. 8289
 Page 2 Docket No. 811+
 2-S00-CM-'80
 Gerner, Cayman helper M. Yanke, Cayman Painter L. Wielgosh.
 Employees that have Thursday and Friday as rest days are claiming 4
 additional hrs. Str. Time for each Saturday and Sunday being forced
 to work and 8 hrs, Str. time pay for each Thursday and Friday for not
 being allowed to work on his rest days. Claimants are Carmen R.
 Birschbach, D, Jacobs, J. Woicek, R. Andrews, Mark Lefeber and L. Holz.
 It should be noted this is termed as a continuing violation commencing
 as dated until dispute is settled and that there will be additional
 claimants who will be forced to work these illegal positions due to
 reassignments.

 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.

This claim was instituted on behalf of numerous claimants, carmen, employed by the Carrier in its shops at Shoreham, Minn.., North Fond du Lao, Wis.., Stevens Point, Wis.., and Superior, Wis.

 The action which gave rise to this claim was the Carrier's institution, during early April of 1977, of new work schedules which included Saturdays and Sundays, thus establishing seven-day operations at these shop facilities.

 It is the position of the Organization that the Carrier violated rules of the applicable collective bargaining agreement regarding Establishment of Shorter Work Week (rules 1-A, (a), (b), (c), (f), (g), the Overtime, Rest Days, and Holiday rules rules 6 and 7), and Article V of the April 2agreement pertaining to double time payments to regularly assigned employees performing work on the second rest day of their assignments.

 It is the position of the Carrier that the great number of bad order cars and its inability to handle those bad orders in a timely manner created an operational necessity to establish seven-day operations.


Form 1 Award No. 8289
 Page 3 Docket No, 8114
 2-S00-CM-'80
 "(a) General



































. (g) Nonconsecutive Rest Days









Form 1 Award No. 8289
 page 4 Docket No. 8114
 2-S00-CM-'80
 " Overtime, Rest DaZs, Holiday and Work
 Rule 6
 1. Service performed on an employee's rest days and the
 following legal holidays, namely: New Year's Day,


















Form 1 Award No, 8289
 Page 5 Docket No, 8114
 2 -S00-CM-' 80
 "for service performed continuously in advance of the
 regular working period with a minimum of one (1) hour
 the advance period to be not more than one (1) hover.









The record before us indicates that the Carrier complied with Paragraph (f) of Rule 1-A when it met with the general chairman prior to instituting a deviation from the Monday to Friday work week, This Rule in the agreement does not require; that the parties concur regarding the Carrier's allegation of an operational necessity to change work week assignment changes, consistent with other provisions in the agreement, and risk the institution of claims where violations of the agreement may occur. Thus, we find at the threshold that the Carrier met its first responsibility of conferring with the Organization prior to the institution of the work week changes. We also find that the Carrier sufficiently demonstrated that there were operational needs for changing work week assignments. The build up of bad order cars heightened by the institution of more demanding regulations published by the Federal Railroad Administration created a bonafide operational need.

 Thus, the Carrier's changing work week assignments from Monday through Friday to Tuesday through Saturday was consistent with the language and the intent of the applicable agreements.

 However, the organization has convincingly argued that deviation from Monday to Friday work week assignments to Tuesday to Saturday schedules is the only change permitted and is specifically referenced in sub-paragraph (f) of Rule 1 A, cited above, Further, the Organization states that seven (7) day positions under sub-paragraph (d) of Rule 1-A can only be established where such positions have been filled previously in this manner, The record before us does not
 Form 1 Award No. 8289
 Page 6 Docket No. 811+
 2-S00-CM-'80

 indicate that any of the positions at the shop facilities on the repair tracks have previously been filled on a seven (7) day position basis. Therefore, we conclude that although the Carrier had the right to change work week assignments, this right was limited by the specific language of the agreements referred to above, Establishing work weeks with Sunday as one of the five (5) days contemplated in an employee's standard work week assignment violated the terms of the agreement. The remedy for this violation is dictated by the terms of Rule 7 which would require that where Sunday is one of the rest days, existing rules providing for compensation on Sunday shall apply.

    Claim sustained in part consistent with the above findings.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Second Division


Attest; Executive Secretary
 National Railroad Adjustment Board

 40 ie Brasc
                - Administ ative Assistant


Dated at Chicago, Illinois, this 26th day of March, 1980.
        Carrier Members' Dissent to Second Division Award 8289


                  Referee Richard R. Kosher


This dispute involved the right of the Carrier to establish seven day positions, under the Forty Hour Work Week Agreement of 19+9. The Carrier, in the handling on the property, and in their submission before the Board, did a thorough and most impressive fob of proving a bona fide operational need for a seven day operation. There was a tremendous build up of bad order cars over the weekends at the points involved, customers were complaining about shipping delays, and competition for the traffic from several other carriers was proven. As the Carrier also noted, if it was unable to deter and improve the delays in car movements caused by bad. orders being unduly delayed on the repair tracks at the involved locations, the result would be that it would lose the traffic. Losses in traffic are no small concern for a common carrier today, and, they should be of no small concern to the employee, for traffic losses mean fob losses.

 The Majority did find that Carrier had proven an operational need for the change

      "We also find that the Carrier sufficiently demonstrated that there

were operational needs for changing work week assignments. The build up
 of bad order cars heightened by the institution of more demanding regu
 lations published by the Federal Railroad Administration created a
 bonafide operational need."
 Where the majority seriously erred, however, was in its further conclusion that
 the Carrier has precluded, under the Forty Hour Work Week Agreement, from establishing
 Seven Day Assignments where a bonafide operational need was shown. Based on the
 precedents of this Board and the contractual construction of the Agreement, such
 conclusion was clearly outside the confines of the Board's jurisdiction.
 page two

 The Majority concluded:

        It

    However., the majority has convincingly argued that deviation from Monday to Friday work week assignments to Tuesdau to Saturday schedules is the only change permitted and is specifically referenced in subparagraph (f) of Rule 1-A, cited above. Further, the Organisation states that seven (7) day positions under sub-paragraph (d) of Rule 1-A can only be established where such positions have been filled in this manner. The record before us does not indicate that any of the positions at the shop facilities on the repair tracks have previously been filled on a seven (7) day position basis. Therefore, we conclude that although the Carrier had the right to change work week assignments, this right was limited by the specific language of the agreements referred to above. Establishing work weeks with Sunday as one of the five (5) days contemplated in an employee's standard work week assignment violated the terms of the agreement."


It is this conclusion which is without arty basis in reason or fact, based both on the contractual provisions involved and the many precedents of this Board.

 Rule 1-A of the Agreement, the 40 Hour Week Agreement, first of all contemplates that "the work weeks may be staggered in accordance with the carriers' operational requirements; so far as practicable the days off shall be Saturday and Sunday." Rule 6, Paragraph 2 of the agreement between the parties, which is also drawn verbatim from the 40 Hour Week Agreement, provides (underscoring added):

        "Existing provisions that punitive rates will be paid for


Sunday as such are eliminated. The elimination of such
 provisions does not contemplate the reinstatement of work
 on Sunday which can be dispensed with. On the other hand,
 a rigid adherence to the precise pattern that y b a in
 effect imme sate -prior to September 1 9, with regard
 to the amount of Sunday work that mad be necessary, is not
 required. Changes in the amount or nature of traffic or
 business an season fluctuations must be taken into account.
 This is not to be taken to mean, however, that types of
 work which have not been needed on Sundays will hereafter be
 assigned on Sunday. The intent is to recognize that the number
 of people on necessary Sunday work may change.
 It is clear from these, and other relevant portions of the 40 Hour Work Week Agreement.
 page three

 that there is no contractual bar to the establishment of seven day positions, and, no contractual bar to establishing such assignments with Sunday as a regularly assigned day of work. Rule 1 (d), the strongest element of support for the majority's conclusion, speaks to seven (7) day positions:

 "On positions which have been filled seven days per week,
 any two (2) consecutive days may be the rest days, with
 the presumption in favor of Saturday and Sunday."
 An analysis of the rule does not indicate that it prohibits the establishment
 of seven day assignments - where none ltoxe existed previously. It first of all
 clearly notes that rest days may not necessarily be Saturday and Sunday - but
 the pre-ion is in favor of those days. And, when read in conjunction with
 Rule 6, Paragraph 2, also from the 40 Hour Work Week, it is established beyond
 a doubt that this was not the intent. Firstly, the rule eliminated existing
 provisions that provided payment of punitive rates for Sunday work - as such -
 clearly shoring that Sunday could be a regularly assigned day. Secondly, and
 in significant part, the rule provided that "...a rigid adherence to the precise
 pattern that may be in effect immediately prior to September 1, 1949, with
 regard to the amount of Sunday work that may be necessary, is not required.
 Changes in the amount or nature of traffic or business and seasonal fluctuations

 must be taken into account The intent is to recognize that the number of

 people o n necessary Sunday work may change."

 Significantly, upon presentation of this dispute to the Board, the Organization cited not one previous decision which supported their position - the sum and substance of their position was based upon oral and written argument stating their position and interpretation of the agreement. Contrarily, the Carrier cited numerous previous decisions, all involving the 40 Hour Week, and all directly
 page four

 on paint with the facts of the instant case, to wit, the establishment of seven (7) day positions, with Sunday scheduled as a regular day of work and compensable at the applicable straight time rates. We will again review some of these.decisions herewith, and, it should be noted that they consistently have interpreted the same 40 Hour Work Week Agreement as the Carrier did in the instant case. These decisions, which date as far back as 1951 on the Second and Third Divisions of this Board, have consistently recognized that, based upon the language of the 40 Hour Week agreement, the sole criterion to be determined, and the sole evidentiary test which the Carrier must meet, is whether their existed a bonafide operating need for the change in scheduling and the seven (7) day assignments with Sunday as a regularly assigned day. It was not necessary to prove, and is not necessary to prove, that such seven (7) day assignments had previously existed:

    (Second Division Award 1644 - Referee Edward Carter, 1953):


      "The agreement does not prohibit the assignment of a type of work on Sunday after September 1, 1949, even though it was not so assigned prior to that date, if such work is necessary to be performed on Sundays. The proof required must, however, be sufficient to overcome the presumption that it is not necessary to be performed on Sunday because of the fact that it was not so performed prior to the advent of the Forty-Hour Work Week Agreement."


      The burden is upon the employes to show that the carrier misapplied the agreement in establishing seven day positions at Fort Worth for the employees assigned to the work of making running repairs on cars coming into that point. Awards 1599, 1617, Second Division and Awards 5555, 5556 and 5557, Third Division. This it has failed to do by the greater weight of the evidence. We necessarily conclude that the assignments in question were properly made and that a denial award is in order."

page five

 Precedetits on the Second Division cited included Awards 1645 to and including

 Award 1b55, Awards 1599, 1608 to 1616, Award 1669, Award 1883, 1712,1714,

 2585 and 3094. Later precedents of the Division were equally consistent. 2nd Division

 Award 7066, Referee Eischen, met this same issue head on, and, in citing
 Third Division Awards 18504, 10622, 18328 and 5555, concluded, after s long discussion of the issues, that Carrier's action in establishing seven (7) day positions at its car shops, because of bona fide operating needs, was in conformance with the agreement. In Award 7149, Referee Zumas addressed the same issue in deciding that the Carrier had a right to establish a position with Wednesday and Thursday rest days:

      "It is clear from this rule that the length of the work week is to be determined by an examination of the necessary service to be performed, and not by the work week of the individual.

The record herein shows that the McComas Street Piers operations have for marry years been on a seven day schedule, and that operational requirements cannot be met on a Monday through Friday schedule. Under the circumstances, the claim must be denied. Third Division Award 20207 also squarely addressed the issue, and, after a thorough discussion of the issues and numerous previous awards, concluded that the Carrier could establish seven (?) day assignments, with Sunday as a regularly assigned day and compensated for at the straight time rates (see page four of the decision for authority and discussion on this subject). In that case, all decisions involving this issue were discussed and distinguished, and, in addition to Third Division decisions on the point, Award 12 of Public Law Hoard 249 was cited far support.

 Other Third Division decisions directly on point, and of more recent vintage

 than those cited above, include Awards 18504, 18505 and 18328.

 Despite the fact that no contrary decisions were presented by the Organization in support of its positions, and, in the face of all of these decisions, directly on point, that were presented to the Referee for his review, study and comparison,
 page six,

 the Referee lead in a clearly erroneous decision supported by the Organization upon moving for adoption. As we said before, in the face of the agreement language, the precedents, and the clear lack of evidence presented by the organization in their submission and at the Board during hearing, this decision is, without a doubt, outside the confines of the jurisdiction of the Board - based on a conclusion that cannot be supported by the arguments, the evidence, the precedents and the agreement language itself.

 Aside from the foregoing, there is another tragedy in the findings of this decision, and, the very fact that the organization would process and litigate what has heretofore been a totally settled issue in tike industry. The tragedy is, very simply, that with the rail industry in the state of economic disarray, carriers need the ability to compete and perform competitive services at the most efficient and economical level. Failure to do so has resulted in the proven financial collapse of once healthy carriers, and, as this is written, tyro once healthy midwestern carriers have either completely ceased operations or substantially paired down operations - due to bankruptcy. While many factors entered into their predicaments, one is most certainly apparent - restrictive and costly labor contracts made them unable to effectively compete with other railroads and other modes of transportation. The resultant impact upon the employees of those carriers is astounding, and there are close to 14,000 rail employees in the midweat who have lost, or possibly will lose, employment simply due to these bankruptcies. No doubt, many of these employees would be extremely happy if they even had the opportunity to work a regular assignment, which, while scheduled on weekends to meet operating requirements of their employer, provided them a livelihood and a solid economic base so that their families and personal lives would not be stressed or interrupted because of the financial insolvency of
 page seven

 their employer. There comes a time in the course of events when labor organizations and their employees should recognize the economic and personal long term implications of stressing issues which clearly, based on the evidence of record, would place the employer in an adverse competitive and economic situation. For, the long term results could have a profound affect on their lives - as has been demonstrated by the midweatern rail bankruptcies of recent years.

 While the organizations certainly have every right to litigate issues involving collective bargaining matters, once issues have been well settled by authoritative decisions, as this issue clearly has been, sound labor relations and the very economic well being of the employer should weigh heavily in considering whether to attempt to relitigate an issue which has been clearly settled for at least twenty, or perhaps close to thirty years. In the face of all of the carrier's evidence in this case, and the marry precedents settling the issue on a consistent basis, it is at most questionable that-an attempt to try the issue another time, before another referee, was in the best interests of sound and progressive labor relations, the economic and competitive well being of the carrier, and, equally important, the future interests of stable employment of the employees involved.

 Summarily, we think that this issue has been firmly resolved by previous decision. of both the National Railroad Adjustment Board and other minor dispute tribunals_ and that the clearly contrary decision in this case was in error and not within the Board's jurisdiction. We are compelled to so record our sentiments by issuing this strong dissent.
    ,


page eight

 - Q

 P E. La.Cosse

          ~ ^.

    es E. Mason


David M. Lefkow - ~ -
 I'&-Varga .-

 Carrier Members