Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10377
SECOND DIVISION Docket No. 10163
2-D&RGW-CM-'85
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Denver and Rio Grande Western Railroad Company
Dispute: Claim of Employes:
1. That the Denver and Rio Grande Western Railroad Company violated the
provisions o f the Controlling Agreement when it failed to bulletin
specific positions in the Burnham Steel Car Shop.
2. That the Carrier advertise by bulletin the positions of Panograph Machine
Operator, Bolster Machine Operator and the three positions in the Pre-Fab Shop, which are presently held by carmen by assignment, rather than
by bid.
3. That senior employees availing themselves by application and bid be
assigned to said positions.
4. That these positions be assigned by bid to avoid depriving senior qualified
carmen their rights of seniority.
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.
Over the past two years, the Carrier, the Denver and Rio Grande Western
Railroad Company, has added new equipment to its
Denver, Colorado,
Freight Car
Shop, known as Burnham Shops.
The Carrier established Carmen positions to operate these new machines. The
Organization filed a claim alleging that the Carrier improperly bulletined these
jobs, placed junior employes in the positions, and violated the seniority rights
of other Carmen.
The Organization contends that the Carrier violated Rule 15 of the current
Agreement when it did not bulletin these jobs and merely placed junior employees
in the positions.
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Rule 15 provides:
"(a) In filling new positions or vacancies in the respective
crafts, the oldest employe in point of seniority
bidding on bulletin thereunder shall, if sufficient
ability is shown by fair trial, be given preference
in filling such positions or vacancies.
Note: Assignments of employes in charge of
wrecking crews, or as wrecking engineer,
will not be considered as vacancies under
this rule, and employes for these jobs
will be selected by the Management in accord
ance with the established practice.
(b) A11 new positions and vacancies shall be bulletined
for five (5) days before being permanently filled.
(c) An employee exercising his seniority under this
rule, after a fair trial, failing to qualify, shall
be permitted to displace only the youngest employe
in his craft, in case a new position or vacancy is
filled in accordance with this rule, and the applicant fails to qualify, the next applicant in order,
qualified to do the work, will be assigned to the
position.
(d) If there are no applicants under the bulletin, or
if those applying are not sufficiently qualified
to do the work, the position will be filled by the
assignment of junior employe qualified to do the
work.
(e) Employes exercising seniority rights under this
rule will do so without expense to the company.
(f) Copy of application filed under a bulletin shall
be given to the Local Chairman, if desired."
The Organization argues that although this work is Carmen's work and may be
assigned to Carmen in line with their normal job duties, these new positions
should have been bulletined under Rule 15 so that senior employees could have
exercised their seniority rights to take the desirable work assignments.
The Organization contends that if the Carrier changes the duties of a position,
it becomes a new job for the purposes of Rule 15. The Organization argues that
the Carrier did install new machines and institute new procedures. Consequently,
argues the Organization, these new positions should have been bulletined pursuant
to Rule 15.
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The Carrier argues that it has applied Rule 15 in the same way for at least
forty years--by stating in a bulletin that a vacancy exists, listing the number
of Carmen needed, and listing any required qualifications. The senior bidder is
then assigned to the vacancy. The Carrier contends that it followed this procedure
in the instant case. The Carrier contends that the Organization has acquiesced
in this procedure and is, therefore, time-barred from filing this claim.
The Carrier contends, in addition, that the Organization's acquiescence to
its bulletin procedure estops the Organization from denying that Carrier's
application of Rule 15 was valid.
In addition, the Carrier contends that Rule 15 does not require that specific
duties be detailed in the bulletin; rather, it is evident that when a Carmen's
position is advertised, the position involves Carman's work. On October 9, 1981,
the Chief Mechanical Officer of the Carrier denied the Organization's claim and
stated:
"I disagree with your
contention that
Rule 15 is being
violated by Carrier's failure to bulletin individual
jobs within the Steel Car Shop. Rule 15 ony applies to
filling new positions or vacancies and the Carrier, in
its experience of managerial discretion, unilaterally
decides when it is necessary and required to add new
positions. Furthermore, Rule 15 was not intended to
establish a pecking order for each item of carmen's
work or machine within a shop or yard where carmen are
assigned.
The agreement is not being violated. Your assertions
and position are denied."
Moreover, the Carrier argues that seniority rights do not allow an
employee to choose only the particular types of Carman's duties that the employee
wants to perform. Carrier contends that the bulletin in this case was descriptive
enough. The Carrier contends that business efficiency requires that the Carrier
itself assign particular Carman's duties to its Carman employees.
Finally, the Carrier argues that the Organization has not met its burden of
establishing that the Carrier violated any rules of the Agreement.
This Board has reviewed all of the facts and arguments in this case and
finds that although the Organization has characterized this case as a "seniority
issue", that terminology really does not accurately define this matter. This
Board recognzies the importance of seniority and the rights of long term employees
that are protected by Rule 15 of the Agreement, which requires that the senior
employees be given preference in filling job vacancies. Certainly, the Organization
is entitled to have Rule 15 enforced when violations of it occur. However, there=
has been no violation of Rule 15 here.
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This case involves the Organization's position that in bulletining the job
vacancies at issue, the Carrier did not post specific enough job descriptions to
enable the more senior employees to intelligently bid on those jobs. Since these
jobs contain certain duties that Carmen are assigned that are more preferable
than others, the Organization contends that the vague job descriptions that were
posted did not allow the senior employees the right to knowingly exercise their
seniority rights.
However, it is clear that Rule 15 places no restrictions on the Carrier as
to what or where vacancies or positions must be bulletined, nor is there any
requirement that the Carrier detail the specific job duties in every bulletin.
Various rules in the Agreement describe the duties of Carman Mechanics, detail
the Carman Mechanic work, and set forth the work requirements. There is no
provision in Rule 15, or in any other rule in the Agreement, that a Carman may
exercise his seniority to select preferable items of work or a particular
machine.
In Award No. 3888 this Board held:
"It is established that the Carrier has never specified
particular work or operations in the bulletins issued for
machinist vacancies in the Car Department Wheel Shop.
Management states the practice, and its own intention,
have always been to avoid a condition whereby machinists
would acquire individual rights to a particular kind of
work--thus, impairing the efficiency of the overall operation. The Carrier further states that no specific kinds
of work in the shop require full-time performance on the
part of a machinist."
Moreover, in Award No. 6091 we held:
"The reference in the bulletin to the applicable job
titles, in describing vacancies and newly created jobs,
satisfies the posting requirements of Rule 7. If the
parties were to desire that the bulletin set forth a more
precise delineation of job duties and work areas than is
presently called for under Rule 17, it is their responsibility to negotiate an appropriate revision of or
amendment to Rule 17. Obviously, the parties have not
authorized this Board to do that for them."
Finally, in Award No. 3144 we held:
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Award No. 10377
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"Rule 39(c) does not govern the manner, method or type
of service which may be required of an employee, nor
alter the prior practice on bulletining jobs and making
work assignments. It simply establishes the minimum
information necessary on job bulletins. The specification of location must be deemed to conform to the established custom of a fixed point to go on and off duty,
rather than as a limitation of the geographical boundaries
within which service is to be performed. The latter is
not possible because all admit that service must be
performed in industry yards and on line of road."
Similarly, Rule 15 does not require what the Organization is seeking in
this case in terms of a more specific job description. This Board understands the
issue being raised by the Organization, but the solution to that problem lies in
negotiating new language to incorporate in the rule. This Board is bound by the
present language of the rule, which does not give this Board the authority to
order what the Organization is seeking.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy J
- Executive Secretary
Dated at Chicago, Illinois, this 17th day of April 1985.