Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10054
SECOND DIVISION Locket No. 9893
2-N&W-CM- ' 84
The Second Division consisted of the regular members and in
addition Referee Tedford E. Schoonover when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Norfolk and Western Railway Company
(formerly The New York, Chicago & St. Louis Railroad Company)
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated Rules 2 (b) and
2 (f) and associated Rules of the controlling Agreement dated October
1 , 1952, when it posted Award No. 8 dated February 19, 1981 , creating
Job No. 132 and 133, effective February 25, 1981, at Buffalo Junction,
Buffalo, New York.
2. That the Norfolk and Western Railway Company be ordered to compensate
Carmen M. Durski for eight (8) hours at the tinge and one-half rate
applicable to Carmen for March 1, 1981; G. Lynch for eight (8) hours
at the time and one-half rate applicable to Carmen for March 8, 15,
1981; F. Adamczyk for eight (8) hours at the time and one-half rate
applicable to Carmen for each Sunday worked beginning with March 8,
1981, and
continuing until
corrected; A. Kelley for eight (8) hours
at the time and one-half rate applicable to Carmen for each Sunday
worked beginning with April 5, 1981, and
continuing until
corrected,;
and all future assignees and awardees for eight (8) hours at the time
and one-half rate for each Sunday worked.
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 were given due notice of hearing thereon.
Rules 2 (b) and 2 (f) cited by the Brotherhood in support of the claim are
as follows
°(b) Five-Day Positions
nOn
positions the duties of which can reasonably be
met in five days, the days off will be Saturday and
Sunday.
n
Form 1 Award No. 10054
Page 2 Locket No. 9893
2-N&W-CM-'84
"(f) Deviation from Monday-Friday Week
"If in positions or work extending over a period of
five days per week, an operational problem arises
which this carrier contends cannot be met under the
provisions of Paragraph (b), above, and requires that
some of such employes work Tuesday to Saturday instead
of Monday to Friday, and the employes contend the
contrary, and if the parties fail to agree thereon,
then if this carrier nevertheless puts such assignments
into effect, the dispute may be processed as a grievance
or claim under this agreement."
It is noted the~claim is made not only on behalf of certain named individual
employes but also unnamed "carmen for each Sunday worked beginning with March
8, 1981, and
continuing until
corrected" and also "a11 future assignees and
awardees for eight (8) hours at the time and one-half rate for each Sunday
worked."
It is well established that claims for unnamed employes are barred procedurally
from consideration as set forth in Award 1439 of the Fourth Division as follows:
"a11 claims for grievances must be in writing and specifically
name the individual or individuals who have been aggrieved."
While the above-stated principle debars the part of the present claim for
unnamed individuals it does not address the substance of the claim which is
discussed below.
The claim
concerns carmen
employed at Buffalo Junction which is located
1.8 miles from Carrier's Buffalo Terminal facility. Whereas the Brotherhood
states the work usually performed at Buffalo Junction is a repair track applying
floor planks to freight cars, the Carrier states the work performed by Carmen
is broader in scope, i.e., "Carmen at Buffalo
Junction
perform program work on
certain cars and do other carmen's work on demand." The Carrier contends the
changed assignments set forth in Award No. 8 were necessary due to operational
requirements.
Prior to effecting the changes in job assignments under Award No. 8, the
Carrier's General Foreman met with the Local Chairman of the Brotherhood and a
committeeman on February 12, 1981 to discuss the proposed changes. In the
meeting the Carrier representative set forth the reason for the proposed
changes as follows:
"in addition to the flooring of flat cars, the positions
were needed on Sundays to work cars set off from road
trains, inspect empty piggyback and tri-level cars from
the piggyback ramp, to perform other duties of the
carmen's craft as necessary, and to cut down on the
overtime that was being required as a result of not
having such assignments."
Form 1 Award No. 10054
Page 3 Locket No. 9893
2-N&W-CM-'84
In meeting with the Brotherhood representatives over the proposed changes
the Carrier did not contend it had an operational problem as contemplated by
Rule 2 (f). Instead the Carrier proposed the changes in assignments because of
work needs as specified above.
The National Agreement of September 1, 1949, establishing the 40 hour worn:
week contemplated five work days of eight hours each with two consecutive days
off and specified that "work weeks may be staggered in accordance with carrier's
operational requirements. The Agreement also specified that "so far as practicable
the days off shall be Saturday and Sunday." The provisions of Rule 2 (f) do
not preclude Carrier from changing assignments and contemplates that operational
needs may arise which necessitate changing rest days from the preferred Saturdays
and Sundays to other days of the week.
The Carrier set forth specific needs in defense of the proposed changes in
the assignments covered by the claim. The Brotherhood, on the other hand, did
not support its claim, with evidence but, instead, relied on disputing Carrier
contentions as
to the operational requirements which formed the basis of the
changes in assignments. The inspection reports, included as a part of the Brotherhood's Submission, do not contain supportive evidence on the claim.
The Brotherhood relies heavily on Award 8289 in support of its claim.
Examination of that award, however, shows it arose out of Carrier establishing
a seven-day operation, a situation which does not apply in this case. The
record shows that prior to Award No. 8 there was a seven-day operation at
Buffalo Junction. All that was changed by Award No. 8 were the rest days
so that the Claimants no longer had Sunday as rest days. Thus, the Carrier
action in abolishing and re-establishing positions under Award No. 8 was as
follows:
Rest days On Positions Abolished
Thursday-Friday Friday-Saturday Saturday-Sunday Sunday-Monday Total
1 1 5 3 10
Rest Days On Positions Established Under Award No. 8
Thursday-Friday Friday-Saturday Saturday-Sunday Sunday-Monday Total
0 2 5 2 9
In this case, just as in Award 8289, the Carrier complied with the requirements of Rule 2 (f) in meeting with the Local Chairman and a committeeman to
discuss operational needs which necessitated the proposed changes in assignments.
The rule in that case is identical to Rule 2 (f) and we concur with the analysis
in Award 8289 as applicable here just as in that case.
Form 1
Page 4
In Second Division Award No. 8289, the Board found:
".
. . 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 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.
,v
Award No. 10054
Locket No. 9893
2-N&W-CM-'84
The claim is not supported by probative evidence and thus must be deemed
as mere assertion of violation without the proof required. The Carrier established
the need for rearranging shift assignments in accord with its right to arrange
its forces and manage its business in accordance with operational needs. Lacking
proof that Carrier failed to meet its responsibilities under the Agreement in
making the changes in shift assignments the claim must be denied. The same
principles are involved here as in Second Division Award 3630 as follows:
"It is a fundamental principle of the employeremploye relation that the determination of the
manner of conducting the business is vested in the
employer except as its power of decision has been
surrendered by agreement or is limited by law. Contractual surrender in whole or
in
part of such basic
attribute of the managerial function should appear
in clear and unmistakable language."
"The several divisions of this board have also
consistently recognized that the petitioning
organization bears the burden of proving that the
carrier has surrendered its fundamental rights by
agreement . . . ."
Form 1 Award No. 100_`i4
Page 5 Locket No. 989.3
2-N&W-CM-'84
A W A R D
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Second Division
00,
Attest:
Nancy . L~6er - Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1984.