Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10685
SECOND DIVISION Docket No. 9855-T
2-BN-CM- '85
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc. (formerly St. Louis-San Francisco
Railway Company) willfully and knowingly violated the provisions
of the then and now current controlling agreement when it
assigned other than Carmen to perform Carmen's work at the
Consolidated Freight Car
Shops, Springfield, Missouri on
August 11, 19 and 26, 1980.
2. That accordingly, the Burlington Northern, Inc. be ordered
to compensate Carmen as follows:
R. S. Slaughter - a four hour call for 8-11-80
J. A. Huckstep - a four hour call for 8-19-80
J. L. Parrish - a four hour call for 8-26-80
3. That this violation not be repeated.
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.
The instant claim alleges that on August 11, 19 and 25, 1980,
Carrier improperly assigned other than Carmen (specifically, a Laborer
from the Firemen and Oilers craft) to perform Carmens' work at the
Consolidated Freight Car Shops, Springfield, Missouri.
The record in this case contains numerous diverse and seemingly
persuasive arguments which have been proffered by the parties in support
of their respective positions. Said arguments range in character and
nature from the very broad procedural contention that the Board lacks
jurisdiction in the case because Organization allegedly failed to satisfy
Form 1 Award No. 10685
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2-BN-CM- '85 _
the mandates of the Jurisdictional Dispute Rule (51), to the very focused
substantive contention that, if the Board does accept jurisdiction in
this matter, then the alleged violation was de minimus and further that
the requested remedy is excessive thus warranting the dismissal of the
claim itself.
Rather than undertaking a detailed recapitulation of the Board's
rationale regarding each of the arguments presented by the parties and
thereby protracting the ultimate disposition of this case, suffice it
to say that the Hoard is persuaded that the claim must be denied for
the following reasons:
First, Organization has failed to establish that there is a Rule
which specifically reserves the exclusive performance of the disputed
work to Carmen; and further that the disputed work was work which was
reserved exclusively, either by practice or by mutual Agreement between
the parties, to Carmen on a system-wide basis (Second Division Awards
7487, 8442, 8831 and 9062; Third Division Awards 7031, 12795 and 19841).
Such a failure on Organization's part, as the moving party in such
matters, is fatal to Organization's basic position.
Second, organization has failed to adduce sufficient evidence of a
probative nature which would establish that the disputed work was performed in the manner which organization alleges. In this regard,
organization contends that on the three (3) cited occasions a Laborer
from the Firemen & Oilers craft specifically furnished material to
Carmen for the performance of their (Carmens') assigned duties. Carrier,
on the other hand, argues that there was no actual distribution of
materials and that the disputed work, if any, consisted of "stockpiling
of material on the Apron Track" for later use by the Carmen.
Other than Organization's mere assertions that the alleged incidents
occurred in the manner as charged, there is no other supportive evidence
available in the record to substantiate Organization's claim. Again,
Organization as the moving party, has failed in its obligation to provide
sufficient proof in support of its Claim, and such a failure is detrimental
to Organization's basic position (Second Division Awards 7426 and 8073).
The third and final factor which forms the basis for this analysis
is that the essence of Organization's argumentation herein has been
that a Laborer from the Firemen and Oilers craft performed Carmens'
duties which were normally and regularly performed by an employee who
was classified as a Carman Supplyman or by a Lead Carman Supplyman.
The claim which was filed in the instant identifies Claimants as Carmen
and requests that, in remedy of the alleged infraction(s), said Claimants
each be paid for four (4) hours at the Cayman's rate. In this regard,
the Board is persuaded that Claimants were not only not the aggrieved
parties in this matter, but, in addition, the remedy which was requested
was excessive under the circumstances since the rate of compensation
for a Cayman Supplyman and Lead Cayman Supplyman is less that that of a
Cayman (Second Division Awards 7356 and 9689).
Form 1 Award No. 10685
Page 3 Docket No. 9859-T
2-BN-CM- '85
For the foregoing reasons, either alone or in combination, it is
determined that Organization's claim as presented herein is defective
and cannot be sustained.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTENT BOARD
By Order of Second Division
Attest: ~ _ _
Nancy ver - Executive Secretary
Dated at Chicago, Illinois this 8th day of January 1986.