Form 1
Parties to Dispute:
Dispute: Claim of Employes:
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 8424
Docket No. 8342
2-SISF-CM-'80
The Second Division consisted of the regular members and in
addition Referee John J, Mikrut, Jr. when award was rendered.
System Federation No. 22, Railway Employes'
Department, A. F. of L. C. I. 0.
(Carmen)
( St. Louis-San Francisco Railway Company
1. That the St; Louis-San Francisco Railway Company violated the provisions
of the controlling agreement when it improperly abolished Diesel Shop
Carpenter's (Carman) job and subsequently changed rest days of said
assignment.
2.
That accordingly the St. Louis-San Francisco Railway Company be
ordered to compensate Carmen as follows:
T. R. Knight
Harry Williamson
S. E. Simmons
W. P. Vaiden
R. R. Harrison
R. E. Richmond
L. W. yadon
3.
That the St.
the position
and Sunday.
Findings:
8 hours time and one-half for November 27, 1977
8 hours time and one-half for December 4, 1977
8
hours time and one-half for December 11, 1977
8
hours time and one-half for December 18, 1977
8
hours time and one-half for January 1, 1978
8
hours time and one-half for January 8, 1978
8 hours time and one-half for January 15, 1978
Louis-San Francisco Railway Company be ordered to change
back to its original status with rest days of Saturday
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 empaoye 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.
This dispute arose as a result of Carrier's action on November 24, 1977,
wherein a Diesel Shop Carpenter's (Carmen) position, Symbol No. 549, a seven
(7) day job with Saturday and Sunday rest days, was abolished and was initially
rebulletined as a five
(5)
day position with Friday and Saturday rest days;
however, on February 9, 1978, the position was again rebulletined with Monday
and Tuesday rest days. When the position was originally abolished, the reason
given by Carrier at that time was that there was a "change in assignment".
Form 1 Award No.
8424
Page 2 Docket No.
8342
2-SISF-CM-'80
In this instant dispute Carrier argues that said change of assignment was
initiated so as to properly meet the Carrier's needs, and such action, according
to the Carrier, is the prerogative of management and is expressly permitted under
Rule 1(d) which states
"On positions which are filled seven days per week, any
two consecutive days may be the rest days with the
presumption in favor of Saturday and Sunday."
Specifically, Carrier maintains that, in its original form, the disputed
position created an operational problem in that there was but one locomotive
carpenter position available on Carrier's property and this position was occupied
by an employee who was a regular member°of the Wrecking Crew, and when that employee
was away in wrecking service, Carrier had no one available to perform carman
duties at the Diesel Shop. In support of its position Carrier offers Second
Division Award No.
7149
wherein Referee Zumas concluded:
"The question to be resolved in this dispute is whether the
provisions of Rule 1 of the Agreement was violated when
Carrier established a position at McComas Street Piers
tractor shop with rest days Wednesday and Thursday
rather than rest days Saturday and Sunday.
t
It is clear from this rule that the length of the work week
moo
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 many 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."
As its final argument, Carrier contends that since employee who worked
position No.
549
on the dates cited in grievance claim was the regular incumbent
employee in said position, then, according to Carrier, Claimant's request for
compensation is improper since "(T )here are no agreement provisions providing
for a penalty payment to the Claimants, who are members of the overtime board,
when work is performed by the regular incumbent on one of his assigned work days".
Claimant's Organization contends that Carrier unjustly and with complete
disregard for the parties' Agreement, illegally abolished Position No.
549
without
just and sufficient cause. In support of its contention Organization maintains
that Carrier's action is violative of Rule 1(b) of the controlling Agreement
which provides:
Form 1
Award No, 8424
Page
3
Docket No. 8342
2-SISF-CM-'80
"On positions the duties of which can reasonably be met
in five days, the days off will be Saturday and Sunday."
Organization maintains that Position No.
549
was a preferred position which.
had been in existence fox more than 20 years and said position "... most
generally had been held by a Carman who also performed wrecking service for the
Carrier". According to organization, Carrier's action in this dispute was
motivated by Carrier's desire to force the incumbent employee fraan said position.
because he was absent on occasion due to the fact that he was a regular member
of the wrecking crew. Thus, Organization contends that this dispute arose from
an intro-management conflict between the Repair Track Foreman and the Diesel
Shop Foreman and Carrier's actions were an improper means by which to remedy
this particular problem. In support of this argument Organization maintains
that Carrier's true motive for abolishing Position No.
549
is demonstrated by the
fact that no change was ever made in the job duties themselves, but only the rest
days were changed.
As to the compensation portion of the remedy which has been requested,
Organization maintains that such a request is proper in that Claimants were those
employees who should have been assigned from the overtime board to work Sundays
had the disputed position not been improperly changed from a seven day assignment
to a five
(5)
day assignment.
The Board has carefully reviewed the record in this unnecessarily complex
case, and it is patently clear that Carrier acted improperly in the manner in
which Position No,
549
was rebulletined and, for reasons that will be set forth
in detail below, the relief requested in this particular aspect of the case,
therefore, will be granted. However, in view of the specific circumstances
involved herein, and becair a the record fails to show that Claimants, who were
overtime board employees, were injured in any way or suffered a loss because of
Carrier's actions, the compensation portion of the claim is dismissed for lack
of a proper Claimant, (See: Third Division Awards Nos.
1754
and
19103).
As to the merits of this case, there is no question that Carrier, for
reasons which are proper and in accordance with the terms of the parties'
Agreement, can change rest days and make other similar alterations in its
employees' work schedules (See: Second Division Award No.
7149).
However, in
this instant case, though Carrier's actions appear to b e motivated by Diesel
Shop Foreman's sincere concern in maximizing the productive capabilities of his
employees, the procedure which was utilized to achieve this desirable objective
was improper since it, unquestionably, infringed upon the contractual rights of
the incumbent employee to bid upon a job for which he was obviously qualified
and which was within
his
appropriate seniority unit.
By its own admission, Carrier concedes that Position No.
549
was abolished
and its rest days changed from Saturday/Sunday to Monday/Tuesday for the
express purpose of making the position unattractive to any employee who otherwise:
might be unavailable on a particular day because of same other concurrent assign-,
ment. This Board views such changes as artificial restrictions and, as such,
they are indisputably improper since they would deprive an employee of his/her
Form 1 Award No.
8424
Page
4.,
Docket No. 8342
2-SLSF-CM-180
contractual right to bid upon a job for which he/she in all other respects,
would be qualified to perform. This particular principle has been clear7,y
enunciated by this Division in numerous previous awards (See: Second Division
Awards Nos.
4304, 6418, 6438
and
6830).
Of particular significance in this
regard, however, is the analysis offered by Referee Start in Second Division
Award No.
5807
wherein it was concluded that:
"_
, when men are reasonably available, there is no
contractual basis for excluding them from a wreck
crew assignment, in our estimation, merely because of
possible difficulties in replacing them on occasion.
Rather, such problems can best be resolved by mutual
agreement of the parties as, evidentJ,y, has been done at
other locations.
Upon application of the above interpretation to the facts of this instant
dispute, Carrier is not privileged to rearrange work assignments for the sole
purpose of eliminating certain employees from bidding on such assignments;
nor does Carrier have the right to rebulletin a job with any restrictions
thereto which are not contained in the parties' Agreement. Because these
improper activities did occur, and because the incumbent employee in Position
No.
549
did not file a claim in his own behalf., this Board directs the following
award: (1) compensation portion of this claim is dismissed for lack of a
proper claimant; (2) General Chairman of Carmen's Organization and proper
Carrier representative are directed to investigate the source of controversy
which gave rise to this instant dispute in an effort to remedy the problem;
and
(3)
Carrier is directed to rebulletin Position No.
549
as a seven
(7)
day
job with Monday/Tuesday rest days without restriction to any employee who is,
or who is qualified to be a member of the wrecking crew.
A W A R D
The claim which has been presented to this Board is sustained in part and
denied in part as specified in the above posited Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
By -
os rie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this
23rd day of July,
1980,