Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10679
SECOND DIVISION Docket No. 9954-5."
2-SLSW-CM-185
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(St. Louis Southwestern Railway Company
Dispute: Claim of Employes:
1. That the St. Louis Southwestern Railway Company violated the
controlling agreement and the Railway Labor Act when employes other
than Carmen were instructed to couple the air hose on the twenty-seven
(27) MKT and five (5) ATSF car train transferring cars to the MKT and
ATSF Railroads.
2. That the St. Louis Southwestern Railway Company be required to
pay Carman J. Atkinson two hours and forty minutes (2 hour 40 minutes)
pay at one and one-half the proper pro rata rate of pay.
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.
In the controlling Agreement, Addendum No. 2, Article V, paragraph
(1) states:
"(a) In yards and terminal where carmen in the service
of the Carrier operating or servicing the train are
employed and are on duty in the departure yard, coach
yard or passenger terminal from which trains depart,
such inspecting and testing of air brakes and
appurtenances on trains as is required by the Carrier
in the departure yard, coach yard, or passenger
terminal, and the related coupling of air, signal and
steam hose incidental to such inspection, shall be
performed by the carmen."
Form 1 Award No. 10679
Page 2 Docket No. 9954-T
2-SLSW-CM-'85
As interpreted by previous decisions of this Board (See Awards
5461 and 5368), this Rule means that the work in dispute is to be done
by Carmen if:
1. Carmen in the employ of the Carrier are on duty at the location;
2. The train tested, inspected or coupled is in a departure yard
or terminal; and
3. That the train involved departs the departure yard or terminal.
A11 three of these tests are met in the instant case, and not
disputed by the Carrier. Notwithstanding, the Carrier disputes the
assertion that the two cuts of cars, one of which moved from the
Carrier to the MKT and the other of which moved from the Carrier to the
AT&SF, were, indeed "trains", as contemplated under the Agreement.
Carrier then turns to a discussion of its own Operating Rules
definition of what is or is not a "train". It makes distinctions
between defined trains and other undefined "things" which move on its
tracks from one railroad to another. In the Board's view these
distinctions are
more nice than real. In addition, the Carrier does
not cite any such distinctions as being spelled out in the controlling
Agreement. Finally, it is clear that some freight cars on the outbound
track did move from the Carrier to two other railroads, presumably
under the power of a locomotive, and, in any real sense, that must be
considered to have been a train moving.
A WAR D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy J -OKer - Executive Secretary
Dated at Chicago, Illinois, this 11th day of December 1985.
CARRIER MEMBER'S DISSENT
TO
AWARD N0.
1067
DOCKET N0. 4-T
Referee Stallworth
The Majority in their findings are in error by concluding that the thirt;ytwo car transfer was a train.
The Majority either did not understand the difference between a cut of cars
and a train or else chose to ignore this clear distinction which has been ruled
on by the Board many times in the past. In Second Division Award No.
7997,
the
Board ruled:
"The Board finds that the movement involved herein was that of
a 'cut of cars' from one yard to another. While carmen are used for
air hose work in connection therewith at times, there is no grant of
exclusive jurisdiction as in Article V in reference to 'trains' as
provided in that agreement language."
The .Majority states that all three tests which determine if the work is to
be done by Carmen have been met and are not disputed by the Carrier. This simply
is not a fact. The Carrier vigorously argued that the case involved the coupling
of air on a cut of cars and not a train. It would be impossible for two of the
three tests to have been met as a train did not exist.
The Majority concluded by stating:
"Finally, it is clear that some freight cars on the outbound track
did move from the Carrier to two other railroads, presumably under the
power of a locomotive, and, in any real sense, that must be considered
to have been a train moving."
The logic used by the Majority simply is not consistent with prior decisions of
the Board or industry wide accepted practices.
Therefore, the findings of the Majority are incorrect and shall not be used
as a precedent for future cases of this nature.
Hence, we dissent:
Page 2
M. W F nge ut
M. C Lesnik
P. V. Varga
. E. Yost