Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10742
SECOND DIVISION Docket No. 10528-T
2-S00-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:
( Soo Line Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement, the Soo Line Railroad Company
violated Rules 31, 27, 28 and 94 of the Shop Crafts Agreement as
amended and Article 6, "coupling, inspection and air test", of
the 1975 National Agreement, when on September 24, 1982, the
Soo Line Railroad Company ordered and allowed the switchmen at
Stinson Yard, a departure yard, to perform the Carmen's work of
coupling, inspecting and air test of trains, where Carmen had
previously performed such work on the third shift, 11:30 PM
to 7:30 AM.
2. That the Soo Line Railroad Company violated the time limit
provisions of the agreement when General Locomotive and Car
Foreman R. J. Erkel failed to give reasons for disallowing
the claim in his denial letter dated September 28, 1982.
3. That accordingly, the Soo Line Railroad Company be ordered to
pay Cayman Ed Jurvelin, Superior, Wisconsin, penalty time of
eight (8) hours at time and one-half at Carmen's rate of pay
on September 24, 1982 for not being allowed to perform the
Carmen's work of coupling, inspection and air test trains
at Stinson Yard, where Carmen had previously performed such
work.
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.
Form 1 Award No. 10742
Page 2 Docket No. 10528-T
2-S00-CM-'86
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Claimant, Ed Jurvelin, was employed as a Cayman at the Carrier's Stinson
Avenue Yard location, where eastbound trains leaving Superior, Wisconsin are
made up. Prior to June 6, 1982 two Carmen had been assigned to the third
shift at Stinson Yard to perform coupling, air tests, and train inspection.
On June 6 these third-shift Carmen positions were abolished, due to a decline
in business. Therefore, no Carmen were assigned on a regular basis to the
third shift at the time this dispute arose.
On September 24, 1982 the Claimant worked the second shift at the Stinson
Yard, from 3:30 P.M. until 11:30 P.M. According to the Organization an
outbound train was made up beginning at 11:20 P.M., ten minutes before the
completion of the Carmen's second shift. The parties agree that on this date
the work of coupling, inspection and air-testing the outgoing train was
performed by Switchmen, rather than Carmen. The Organization claims that this
is a violation of the Agreement because Switchmen performed Carmen's work.
The Organization demands eight hours pay at time and a half for Cayman
Jurvelin, who was presumably the senior Cayman on the second shift, who was
available for overtime.
The Organization also argues that the Carrier violated the procedural
requirements for handling a claim when it responded initially to the claim by
stating simply "No rules violated." The Organization argues that this
response violates Rule 31 of the current Agreement, which states that a claim
or grievance must be granted if the Carrier does not respond within 60 days to
the grievance, diving in writing its reasons for not allowing the claim. In
the Board's opinion the Carrier should have given more detailed reasons for -
its initial denial, so that the Organization could better prepare its appeal.
But the Organization's initial grievance is very brief too, and claims a
violation of only one rule from the contract, even though it eventually relied
upon five rules. Furthermore, even though the Carrier's statement that no
rules were violated is not very helpful in resolving the grievance, this Board
in earlier decisions has allowed this response and distinguished it from the
totally unacceptable answer that the claim is simply denied, without any
reasons given. Second Division Award No. 7371, Fourth Division Award No.
3426. Therefore, the Board will not grant the claim upon this procedural
objection, and must proceed to the merits.
Under Rule 94 of the current Agreement, entitled "Classification of Work,"
car inspection and air brake testing is specifically reserved to the Carmen.
Furthermore, a catch-all clause at the end of Rule 94 states that an omission
from this Rule of certain work does not constitute an admission that such work
is not generally recognized as Carmen's work. The Carrier does not seriously
dispute that the work at issue here was classified as Carmen's work, and
performed by Carmen on the third shift before they were furloughed.
Therefore, under Rule 94 the work at issue here is Carmen's work.
Article VI of the December, 1975 Agreement affects this dispute as well,
however, and limits the effect of Rule 94. The relevant language of Article
VI states:
Form 1 Award No. 10742
Page 3 Docket No. 10528-T
2-S00-CM-'86
"(c) If as of July 1, 1974 a railroad had carmen
assigned to a shift at a departure yard ...who
performed the work set forth in this rule, it may
not discontinue the performance of such work by
carmen on that shift (and must restore the perform
ance of such work by carmen if discontinued in the
interim), unless there is not a sufficient amount of
such work to justify employing a carman."
(Emphasis added.)
The section also states that any dispute over whether there is sufficient work
to justify employing a Cayman must be handled in the first instance by a joint
check.
In the instant case, however, the Organization never requested a joint
check, because the Organization does not argue that there was sufficient work
in September to employ one Cayman full-time on the third shift. Instead the
Organization argues that when the Carrier anticipated Carmen work on the third
shift, it should have either kept over a Cayman from the second shift or
called one in to do the Carmen work. The Board is of the opinion, however,
that Article VI permits the Carrier to assign Carmen's work to employes other
than Carmen when there is not a sufficient amount of work on a shift to
justify employing a single Carman full-time. This is the meaning of Article
VI(c), which generally preserves Carmen's work exclusively to Carmen, except
when there is not a sufficient amount of work to justify employing a Carmen on
a shift.
Although the Organization requests payment for a full shift's work on the
date in question, it frankly admits that approximately three, not eight hours
of Carmen's work was performed on that date. Furthermore, the Organization
does not present any evidence, other than this claim, to refute the Carrier's
evidence that almost no Carmen's work was done on the third shift during
September, 1982. Moreover, it appears that when Carmen's work on the third
shift increased, because of an increase in business, the Carmen's jobs were
restored.
Accordingly, the Organization has failed to prove an essential element of
its claim, i.e. that there was sufficient work during the period in question
to occupy even one Cayman on the third shift. Absent such proof, the
Organization has failed to point to any clause in the controlling Agreement
which required the Carrier to call in a Cayman on the third shift to do any
Cayman's work which arose on that shift. Therefore the Organization's claims
must be denied.
Form 1
Page 4
Claims denied.
Attest.
Award No. 10742
Docket No. 10528-T
2-S00-CM-'86
A W A R D
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy
Executive Secretary
Dated at Chicago, Illinois, this 19th day of February 1986.
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