Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10764
SECOND DIVISION Docket No. 10341-T
2-S00-CM-'86
The Second Division consisted of the regular members and in
addition Referee T. Page Sharp 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 the Soo Line Railroad Company violated Rules 27, 28, 94, 99
and 100 of the Shop Crafts Agreement and the 1975 National Agreement, Article
6, "coupling and air test", when on January 22, 1982 they furloughed all the
Carmen that had seniority at Glenwood, Minn. and transferred the work to the
Trainmen and Carmen from other seniority points.
2. That the Soo Line Railroad Company be ordered to compensate
Carmen E. K. Anderson, E. T. Fingerson, S. J. Parrish, R. E. Pederson, T. C.
Boelke, S. A. Sperstad, K. C. Swisher, H. L. Engelbretson, S. K. Sperstad, R.
R. Anderson, G. A. Zenner, R. B. Hanson, A. S. Cooley, G. C. Cihlar and Gary
Myron who were available and have seniority on the Carmen's roster at
Glenwood, Minn. for 4699 hours at straight time, Carmen's rate for Carmen's
work transferred to the Trainmen, 2 2/3 hours time and one-half for Foreman
doing inspection of cars. 10 2/3 hours time and one-half for Section Foreman
and laborers to rerail freight cars in Glenwood yards, 1274 hours at straight
time and 332 hours at overtime for Carmen's work performed by Carmen from
other seniority points, at Glenwood repair facility and areas where the
Glenwood Carmen had historically performed Carmen's work. The above hours to
be divided equally among the Carmen. Hours claimed were from January 22, 1982
and thru December 31, 1982. This being a continued violation by the Soo Line
Railroad Company, record of further hours are being recorded and submitted
until claim is settled."
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.
On January 22, 1982, the Carrier furloughed many of the Carmen on its
system and all the Carmen at Glenwood, Minnesota. Because of this furlough
and the later use of Carmen from other locations and Train and Engine Crews to
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do at Glenwood, work that the Carmen had previously performed, the present
Claims were filed.
The theory of the Claimants is that the ostensible reason for the
furlough of Carmen at Glenwood, decline of business, is now and was perhaps
previously a sham and that the work which was denied the furloughed Glenwood
Carmen must be the basis of time claims for these employees. The Claimants
rest their Claim on alleged violations of Rules 27, 28, 94, 99, and 100 of the
Shop Craft Agreement and Article VI of the 1975 National Agreement.
The Carrier has consistently denied the Claims because 1) the furlough was proper because there was a decline in business, 2) absence of a Rule
that requires it to use Carmen where there is insufficient Carmen's work to
fill a shift, and 3) air hose coupling or air brake testing is not work
exclusively reserved by agreement to the Carmen craft.
The voluminous record has many sheets of reports by the Organization
purporting to record the volume of traffic into and out of the Glenwood
facility. Each time one segment of this continuing report was filed with the
Carrier, a Claim was made for the alleged time that should have been paid to
the furloughed Carmen. The Claim was answered in a consistent manner by the
Carrier which denied it on the grounds stated above.
This Board does not receive the Claims without guidance. Not only
has it been furnished many previous Awards that touch on the same subject, it
has also been furnished awards that relate to the same situation on the same
Carrier and, in some cases, have essentially the same Claimants.
Many Awards have held that work of the nature claimed here will only
fall exclusively to the Carmen of the Seniority District in which it was
performed when certain conditions are met. Central to these Awards is one
condition that Carmen have to be on duty when the work is performed. This is
obviously what the Carrier is referring to in its letter to the General
Chairman on July 9, 1982 when it stated:
"Your exception to the use of trainmen to perform
the work of coupling, testing air and inspecting
brakes is not valid. When Carmen are not available
the work they perform is well within the time to
indicate that the work is not sufficient to require
Carmen. Additionally, their rules provide for
their performance of the duties." (Emphasis by the
Board)
Obviously the furlough of all the Carmen at the Glenwood seniority point
created a condition whereby Carmen would not be available there. Of course,
the inquiry of the Board cannot stop here. To do so would allow desecration
of the rights of a craft through furlough no matter what the merits of the
furlough.
The Award of Special Board of Adjustment, No. 570, Award No. 562,
which concerned many of these same Claimants, has examined the issue and has -
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found that the decline in business had occurred. The detailed operating
information furnished to this Board indicates that the systemwide decline in
business was reflected in the decline in business at Glenwood. Carrier
statistics show that local traffic had become practically nonexistent and that
the diminished traffic flowing through Glenwood was primarily overhead
traffic. The S.B.A. Award concerned job protection and was bottomed on the
issue of decline in business.
Another Award, Second Division, No. 10591, held that furloughed
Portal, North Dakota, Carmen in an identical situation as the Claimants here,
were properly furloughed by the Carrier. It went on to hold that it had no
authority to require the Carrier to reestablish a position, this being a
management prerogative. It found that there had been no contractual violation
of the rights of the Claimants in that case and denied all Claims.
We concur with the reasoning of the previous Boards in that a
legitimate decline in business permits the Carrier to abolish as much of the
craft as the decline so warrants. If the decline is enough to warrant a
furlough of all the employees of the craft at the seniority point, there will
obviously be no Carmen on duty to do work that would accrue to them under the
Agreement if he was on duty, therefore members of another craft can do the
work.
This cannot be the end of our inquiry. Many Awards, including
several furnished us, have held that a furlough does not end the employment
relationship and the contractual rights of the furloughed employees. If
enough work has reappeared at the point to justify the Claim that a Carman
should be recalled to fill a regular Carman position, the fact that he-is not
available to do the work does not furnish the contractual justification for
depriving him of it.
The Claimants have furnished us reams of statistics showing the
arrival and departure of trains at Glenwood. Appendaged to this is a
statistical breakdown of the average time required of a Carmen to do certain
kinds of work. These statistics are then applied to the train consists to
determine the basis for the time of the Claim.
The Carrier has rebutted these statistics by demonstrating that
trains have been double counted, that some trains require no inspection or air
work, and that the statistics about the time of Claim are based on the
assumption that all trains require the maximum work.
The burden of proof rests squarely upon the Claimants. It is their
obligation to prove to this Board that there has been a violation and, if such
be proven, furnish to us credible information to enable us to fashion a
remedy. This has not been done. Because the statistics are not sufficiently
precise, we are unable to determine if enough work that would normally belong
to the Carmen is being done at Glenwood to require that a Carman do it. We
hold, therefore, that the burden of proof has not been met and the Claims will
be denied.
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ,
Nancy J. D ~- Executive Secretary
Dated at Chicago, Illinois, this 5th day of March 1986.