Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10015
SECOND DIVISION Docket No. 9394-f
2-TP&W-MA-' 84
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
( International Association of Machinists and Aerospace Workers
Parties to Dispute:
( Toledo, Peoria and Western Railroad Company
Dispute: Claim of Employes:
1. That uner the current Agreement the Toledo, Peoria & Western Railroad
Company improperly assigned Machinist work to a locomotive Engineer at
Effner Terminal in Effner, Indiana.
2. That, accordingly, the Carrier be ordered to compensate Machinist H. .L.
Markum eight (8) hours pay at straight time rate.
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,employes 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 developments giving rise to this claim are as follows: On September 1.3,
1980 Carrier assigned a Locomotive Engineer to couple locomotive #2010 to a
consist of locomotives comprised of locomotives !1900 and #103 at Carriers Effner
rail situs, located Effner, Indiana. The Organization contends that the aforesaid
assignment violated Memorandum #11, dated December 11, 1959, and also Machinist
Special Rules 50 and 51 of the Controlling Agreement. Memorandum No. 11 is
verbatimely referenced hereinafter:
"It is agreed between the Company and the International
Association of Machinists that the Machinists will continue
to uncouple and couple diesel units, adjust and test air
equipment and prepare diesel units for use in or out of
multiple operation, however, the following will apply:
1. In the event other than Machinists, including
Engineers and Firemen, perform the above work at
terminals (on roundhouse tracks or tracks where
engines are normally tied up) one machinist. to be
later designated will be paid one days pay of
eight (8) hours at straight time rate in each
instant case.
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Page 2 Docket No. 9394-T
2-TP& W°MA-'84
"2. In the event other than Machinists, including
Engineers and Firemen, perform the above work within
any terminal limit (not on roundhouse tracks or
tracks where engines are normally tied up) one
machinist to be later designated, will be paid
one (1) call at four (4) hours straight tame rate
in each instant case.
The above will not apply at intermediate points coming
outside the above terminal Limits."
The Organization asserts that Effner has been historically considered as a
terminal and must still be considered as such, since units tie up at Effner and
replacement units are dropped off at that location. It avers that the work
performed on the claimed date is recognzied as machinists, work and covered by
Rule 51, the Organization's Classification of Work Rule. It notes that Machinist
employes have been sent to Effner for many years performing the work encompassed
by Memorandum No. ZZ and argues that a firmly established practice has been
institutionalized at this location. In effect, it maintains that Effner is a
terminal as defined in Memorandum No. 11 and the work performed by the Locomotive
Engineer was violative of this Agreement.
Carrier contends that the disputed assignment was performed by locomotive
engineers at many other locations on the system where mechanical forces are not
employed. It asserts that the work was not so t°echnically complex as to accrue'
only to the Machinists or exclusively reserved by Rule 51 to that craft. It
avers that the work cannot be considered
maintaining, as
no other maintenance or
repairs were performed nor was anything installed. It notes that the only work
performed on September 13, 1980 was coupling one locomotive to two locomotives
and hooking up the air hoses and jumpers and turning two switches in the cab of
the locomotive. It asserts this work is routinely performed by locomotive
engineers at all locations, except East Peoria where mechanical forces are employed.
As to the application of Memorandum No. 11, Carrier argues that it does nit
apply at intermediate points outside terminal limits. By definition, it observes
Memorandum No. 11 recognized the right of any craft, including engineers and
firemen to perform this work at intermediate locations, but it contends that
Effner is no longer a terminal for the trains involved in this claim. It
acknowledged that claims were paid in the past for work that was covered by
Memorandum No. 11 when Effner was a terminal, but argues that Effner is now an
intermediate point. In particular, it asserts that when it purchased the fiftyfive (55) miles of Penn Central Trackage, after the Penn Central bankruptcy, and
then operated six (6) additional miles on trackage rights over Conrail to Logansport,
Indiana, Logansport then became carrier's eastern terminal. It avers that between
April 1, 1976 and December 16, 1979, Effner remained a terminal because the fiftyfive (55) miles of trackage purchased between Effner and Kenneth, Indiana was in
Form 1 Award No. 10015
Page 3 Docket No. 9394-T
2-TP&W-MA-'84
deplorable condition and safe only for a speed of 10 miles per hour.
Under these
circumstances, it argues it was not possible to operate crews from East Peoria to
Logansport under the Hours of Service Law. Moreover, it points out that when it
was mandated to reach an Agreement, consistent with the requirements of the Regional
Rail Reorganization Act of 1973 with all employe organizations prior to the purchase
of the fifty-five (55) miles of track from the Penn Central, its agreement with
the United Transportation Union on December 7, 1975 eliminated Effner as a terminal.
Paragraph 4 of Article 2 of this Agreement reads:
"(A) When regular through assignments are established
to run from East Peoria, Illinois to Logansport,
Indiana,
in both directions, the following will apply:
(4) East Peoria will be the home terminal and Logansport
will be the away-from-home terminal for regularly
assigned employees operating between Logansport and East
Peoria. Logansport will be the home terminal for regularly
assigned former Penn employees who have accepted employment operating exclusively between Logansport and Effner."
Carrier asserted that the above changes
eliminated E
ffner as a terminal for through
trains in December 16, 1979 and Effner was thereafter recognized as an intermediate
point. It notes that as a result of this change, it reached an agreement with
the Brotherhood of Railway Carmen on July 18, 1978 wherein three (3) Car Inspector
positions were abolished at Effner.
The United Transportation
Union (UTU)
did not intervene in the dispute as a
third party of interest, but it submitted a letter to the Board, dated November
16, 1981. The UTU asserted that Effner is still designated as a terminal under
UTU
Agreements and
is a terminal for trains operating from East Peoria and Effner
and for trains operating
between Logansport
and Effner. Moreover, it argued that
under Article 4 of the December 7, 1975 Agreement (UTU and TP&W), Carrier
recognized Effner as a terminal.
In response to this letter, Carrier argued that the UTU failed to
mention
that Effner was eliminated as a terminal for trains operating from East Peoria to
Logansport after run through was established. It averred that Effner is no longer
a terminal for all TP&W trains and more pointedly, it is no longer considered a
terminal for the trains involved in the machinists, dispute herein.
.`
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Page 4 Docket No. 9394-T
2-TP&W-MA-°84
In our review of this case, we agree with the Organization's position that a
violation of Memorandum No. 11 occurred when a locomotive engineer performed the
disputed work. We recognize, of course, the changes that took place as a result
of the additional trackage acquired in 1976, but we cannot conclude that Effner
is an absolute intermediate point on Carrier°s system. This is a pivotal
distinction. By Carrier's own admission, it acknowledges that Effner is a terminal,
but it qualifies this acknowledgement by noting that trains
running from
East
Peoria to Logansport no longer use Effner as terminal. Inasmuch as this statement
is a correct depiction of the changed through train service, it does not completely
eliminate Effner as a terminal sit us. Memorandum No. 11 does not delineate nor
define a gradation of terminals, it merely states that Machinists will be paid a
specified rate under specified conditions when employes other than machinists
perform the work set out in the defining preamble of the Memorandum at terminals.
It appears that west bound trains must pick up locomotives at Effner and bring
them to Peoria and east .bound trains drop off diesel locomotives at the same
location. Moreover, Article 4 Definite Terminals Defined of the December 7, 1975
Agreement identifies Effner as a terminal. This latter agreement was negotiated
pursuant to the rail reorganization described herein. Accordingly, since Memorandum
No. 11 speaks of terminals and Effner is a terminal however its changing status,
we are constrained by the parties' own articulation of the defining terms of
Memorandum No. 11 to construe the Memorandum as it is plainly and clearly written.
We cannot by judicial construction add an interpretation that however practical ''~'
and efficient from an operational standpoint, is at variance with the provision's
clear and unambiguous language.
On the other hand, we agree with Carrier that the second paragraph of Memorandum
No. 11 is applicable herein since the coupling of the units on September 13, 1980
occurred on the Main Line at Effner and not on any roundhouse track or tracks
where engines are normally tied up. Paragraph 2 of Memorandum No. 11 requires in
part that if an employe other than a machinist performs the defined work within
any terminal a penalty is to be imposed. The only precluding qualification is if
the work is performed on roundhouse track or tracks where engines are normally
tied up. Based on thus find, the payment provided in paragraph 2 of Memorandum
No. 11 shall apply.
A W A R D
Claim sustained to the extent expressed herein.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attestr
Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 8th day of August, 1984.