Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10735
SECOND DIVISION Docket No. 10506
2-D&RGW-CM-'86
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:
( The Denver and Rio Grande Western Railroad Company
Dispute: Claim of Employes:
1. That the Denver and Rio Grande Western Railroad Company violated the
provisions of the controlling agreement when it failed to bulletin
the position of Pettibone Operator at the North Yard Repair Track
in accordance with Rule 15 and deprived senior qualified Carmen
of their seniority rights.
2. That the Denver and Rio Grande Western Railroad Company violated
the time limit provisions of the agreement when Division Car Foreman
McCall failed to disallow the claims submitted by Local Chairman
Lell within sixty (60) days.
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 Carrier operates a Freight Car Shop and Repair Track at Denver,
Colorado, where rail cars are rebuilt, repaired and maintained. The Carrier
uses Pettibone cranes as part of its equipment to accomplish these repairs.
Prior to January 23, 1982 the Carrier used Carmen helpers to operate these
Pettibone cranes, bulletining and awarding the jobs through seniority.
Because of a decrease in business, the Carrier furloughed all of the Carmen
helpers as of January 22, 1982; the Carman helper position of Pettibone crane
operator allegedly was abolished along with the other Carmen helper positions.
Form 1 Award No. 10735
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2-D&RGW-CM-'86
The Organization contends, however, that the Pettibone crane operator
position still exists, and that it is being performed by Carmen, but that it
is not being awarded on the basis of seniority, as the contract requires. The
Carrier contends, however, that the tractor crane is not in use on all days,
and that therefore there is not a full-time vacancy available which must be
bulletined and awarded by seniority.
Both parties have put forth various procedural issues which must be
addressed first. The Carrier contends that the Board has no jurisdiction over
this claim because only a telephone conference, not a conference on the
property, was held prior to bringing this claim before the Board. Section 3,
First (i) of the Railway Labor Act, requires that, before coming to the Board,
disputes must be "handled in the usual manner up to and including the chief
operating officer of the Carrier designed to handle such disputes." The
Carrier contends that the usual manner of handling disputes on the property is
to hold a conference over the dispute in the Office of the Director of
Personnel, and that only a brief long-distance telephone conference occurred
here. The Board has reviewed the correspondence between the parties and note
that the Carrier did not raise this issue until its Submission before this
Board. Because the Carrier has failed to raise this question previously, and
because the responsible parties were located in different geographic
locations, the Board concludes that the conference was within the limits of
the parties' usual way of handling disputes, and that the Board has
jurisdiction.
Secondly, the Carrier contends that the grievance is not framed correctly
low
because it does not name the employes involved, makes no demand on the
Carrier, and contains no date of occurrence on which the grievance is based.
In the Board's view the instant claim is made on behalf of all the Carmen in
the department especially those signing the "protest" which prompted the
claim. The claim requests that the Carrier bulletin the position, and states
that the violation has been ongoing since January 23, 1982. Although the
claim could have been more specific in some of its details, this problem
involves the weight to be given to its assertions, and does not totally divest
the Board of jurisdiction.
The Organization also makes a procedural objection, claiming that the
Carrier's initial response to the claim was received more than sixty days
after the claim was filed. The response is dated within the sixty-day limit,
however, and the organization's handwritten notation on the response that it
was "Received in coach shop" on a date outside the sixty-day period is less
convincing than a date stamp or some other more official form of documen
tation. Therefore the Board does not believe that the Organization has met
its burden of proving that the response was not timely. Thus the Board shall
proceed to the merits of the claim.
Under Rule 15(a) and (b) of the controlling Agreement, "all new positions
or vacancies" must be bulletined and filled by seniority. The Carrier argues
that Rule 15 does not apply because there was no new position available as
Pettibone crane operator. If there was sufficient work for a full-time crane
operator, after the Carmen helpers were furloughed, however, then the
Pettibone crane operator position should have been treated as a new vacancy -
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2-D&RGW-CM-'86
among the Carmen. It should have been bulletined and described as a crane
operator position, because the prime objective of bulletining positions is to
give the employes sufficient information about the job to determine whether
this is a desirable position, worthy of their exercise of their seniority
rights. Second Division Award No. 2294.
The problem with the instant claim, however, is that the Organization has
not successfully convinced the Board that the crane operator is a full-time
position. The Carrier contends that crane operator work is not done every
day. The Organization has not countered this claim with any evidence that
this is a full-time position.
If there is not a full-time vacancy, then the Carrier acts within its
rights when it assigns the part-time crane operator work to various Carmen,
without going through the seniority list. Because the Organization has failed
to present sufficient evidence to conclude that this is a full-time position,
the Board must deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 19th day of February 1986.