Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9574
SECOND DIVISION Docket No. 8563-T
2-BN-FO-'83
The Second Division consisted of the regular members and in
addition Referee Carlton R. Sickles when award was rendered.
( International Brotherhood of Firemen & Oilers
( AFL-CIO
Parties to Dispute:
(
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That in violation of -the current Agreement, truck drivers, Don
Kovar, W. Burbach, F. T. Brown, A. C. Jones, R. K. Curbach,
Jay Douglass, M. S. Kruse, J. D. Wachtel and D. R. Lohmeier were
relieved of their truck drivers' duties effective August 22, 1978.
2. That, accordingly, The Burlington Northern, Inc. be ordered to
compensate the afore-named truck drivers for the difference in rate
of pay (10q, per hour) of a laborer and truck driver, for each hour
worked from August 22, 1978, and continuing until settled.
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.
Parties to saic dispute 'were given due notice of hearing thereon.
1n this matter the International Association of Machinists, the Sheet Metal
Workers International Association, the International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, the International Brotherhood
of Electrical Workers, the Brotherhood of Railway Carmen of the United States and
Canada, the Brotherhood of Railway and Airline Clerks, the Brotherhood of Maintenance
of Way Employees, and the Brotherhood of Railroad Signalmen were notified as parties
having a possible third party interest.
The substantive issue in. this matter is wiieth=:- the organization has
established a system-wide exclusive right for its m-^bers to the job of truck driver
and bus driver at the Lincoln repair track which vehicles were utilized for the
transporting of car inspectors rind which vehicles were used in transporting the
drivers who also performed the functions of cleaning and otherwise servicing cabooses
Nine positions were abolished at: the Lincoln repair track causing the incumbents to
exercise their senioirty to a position which paid ten cents less per hour for each
such claimant. The organization alleged that these jobs were created and the
Form 1 Award No. 9574
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2-BN-FO-'83
services were performed by employees represented by the Organization since 1948 on
the former CB&Q lines and, that in the process of effecting the merger, the
organization and the carrier had executed an agreement which preserved pre-existing;
rights to employees covered by the agreement. The organization submitted to the
carrier on the property numerous documents executed by members of the organization
and others alleging that the firemen and oilers have exclusively, historically, and
customarily been assigned truck and bus driver jobs which include duties of transporting train inspectors and cleaning cabooses.
A substantially-similar document was executed by tire local chairman at seven
locations other than the Lincoln repair track.
An agreement between the parties had established a ten cents per hour
wage differential for truck drivers and, by virtue of this agreement, the organization
claims ten cents per hour for every hour since the date of the abolition of these jobs
for the nine incumbents in those jobs.
The carrier objects to the procedure in which this matter has been handled_
The organization initiated the claim which the superintendent declined. The General
Chairman thereupon appealed the claim to the Assistant to the Vice President of
Labor Relations which he declined based upon the failure on the part of the organization to present any evidence to support the claim. Some eight months later, the
General Chairman presented the carrier with thirty-one statements in support of
the allegations. The carrier representative objected to these statements being
provided at such a late date. The carrier provided evidence which it felt negated
the claim.
The carrier alleges that it informed the General Chairman that if he wished
to conference the case, he should advise the Assistant Vice President of a convenient
date and that thereafter the General Chairman called the Vice President asking if
the case could be settled. The carrier representative referred to the carrier's
last statement and said that nothing had changed the carrier's position. The General
Chairman then stated that this call would be considered the conference. The carrier
alleges that the General Chairman never did specify date for the conference and,
therefore, no conference was held and thereafter the organization submitted the dispute
to this Board.
It is clear that no conference was held on the property. The mere statement
by the organization representative that a phone call is a conference does not make
it one.
Numerous decisons of the Board have held that the failure to hold a conference
on the property is a serious procedural flaw upon which basis the claim must be
dismissed (Awards 8234, and Third Division Awards 22646, 21440, 14873, 11737).
Third Division Award 21440 provided "Claimants offered to meet with carrier
in conference while he was working in the tower, or at specified times on the
telephone, is not sufficient to satisfy the requirements of the act."
Some few Awards have held that a conference is not required if it would be
a futile act (See Third Division Award Nos. 2786, 3269 and 10030).
Applying this principle to the instant case, however, we find that although there is
some confusion as to the circumstances under which a conference was not held, it is
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Page 2
Award No. 9574
Docket No. 8563-T
2-BN-FO-'83
apparent that the extended time between the denial by the carrier and the submission
of additional testimony did contribute to the apparent difficulty in establishing
the conference.
We do not find that the mere assertion by the organization that it still
maintained its previous position relieves the parties of conducting a conference.,
The conducting of a conference in this case might very well have gone a
long way in resolving some of the substantive issues in this matter. Without
getting into the merits of the matter by virtue of having decided this matter on
procedural basis, it is obvious that much might have been done in conference to
clear up a confused record and questionable evidence on the part of both parties.
For the reasons cited hereinabove, this claim will be denied.
A W A R D
Claim is denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
42
BY
o emarie Brasch - Administrative Assistant
Date at Chicago, Illinois, this 20th day of July, 1983.
a
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division