Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10796
SECOND DIVISION Docket No. 10763
2-MC-CM-'86
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Maine Central Railroad Company
Dispute: Claim of Employes:
1. That the Maine Central Railroad Company (hereinafter referred to
as the Carrier) violated the provisions of the current Agreement; specifically
Rules 26 A, paragraph (a), 28, paragraph (c), and letter of Agreement dated
August 6, 1980, on April 7, 1983, when Carrier improperly assigned a Carman
from another seniority point to perform carmen's work at Rumford Maine.
2. That accordingly, the Carrier be ordered to compensate Carmen R.
M. Hodgkins (hereinafter referred to as the Claimant) eight (8) hours at the
Carmen's pro rata rate of pay on account of violation.
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.
Claimant R. M. Hodgkins is employed as a Carman by the Carrier, the
Maine Central Railroad Company. The Claimant's seniority date is December 27,
1967, and his seniority point is Rumford, Maine.
On April 7, 1983, the Carrier assigned Carman P. P. Perry from the
Lewiston, Maine, seniority point to perform Carman's work within the
Claimant's territory at Rumford, Maine, which is part of the Rumford seniority
point. At this time, the Claimant was furloughed from his seniority point,
but was available to perform the Carman's work assigned to the other Carman on
April 7, 1983.
The Organization filed a Claim on the Claimant's behalf, charging
that the Carrier violated the Controlling Agreement when it assigned a Carman
from another seniority point to perform Carman's work in the Claimant's
seniority territory.
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2-MC-CM-'86
The Organization contends that the Carrier violated Rules 26A(a) and
28(a) of the Controlling Agreement. Rule 26A(a) provides:
"(a) Seniority of employes in the Mechanical
Department, in each craft or sub-division,
shall be confined to the point employed. (See
Note No. 1).
Note No. 1 - - In so far as Carmen's Craft
concerned - -
Bangor and Bucksport - - one seniority point.
Rumford and Livermore Falls - - one seniority
point.
Rule 28, Assignment of Work, provides:
"(a) None but Mechanics or Apprentices regularly
employed as such shall do Mechanics work as
per special rules of each craft, except
Foremen at points where no Mechanics are
employed."
The Organization contends that these Rules establish that seniority is
confined to the point of employment, and all Carmen's work existing at a
seniority point accrues only to the Carmen on that point's Seniority Roster.
The Organization further contends that work that is contractually
reserved to Carmen at a seniority point where all Carmen are on furlough
status must be assigned to the furloughed Carmen. The Organization therefore
asserts that the Claim must be sustained, and the Claimant compensated in the
amount of eight (8) hours' pay at the Carmen's pro rata rate of pay.
The Carrier asserts that on April 7, 1983, the regularly assigned
Rumford Carman was assigned to perform the work that is the subject of this
dispute. The Carrier assigned a Carman from another seniority point to assist
in the work because the regular Rumford Carman could not perform the work
alone. The Carrier asserts that the other Carman merely assisted the regular
Rumford Carman, and that the work he performed was incidental to the regular
Carman's work.
The Carrier points out that Rule 26A relates to seniority that is
confined to the point of employment. The Carrier asserts that although the
Claimant holds seniority at Rumford Yard, the disputed work was performed by
the regularly assigned Rumford Carman. The Carrier therefore asserts that it
did not violate Rule 26A.
The Carrier points out that Rule 25(a) of the Controlling Agreement
provides:
lqw
Form 1 Award No. 10796
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2-MC-CM-'86
"The Carrier shall have the right to use furloughed
employees to perform relief work on regular
positions during absence of regular occupants . . .
. It is also understood that the Carrier retains
the right to use the regular employee under
pertinent rules of the Agreement rather than call a
furloughed employee."
The Carrier asserts that the disputed work was neither work of a regular
position nor was it performed during the absence of the regular occupant;
rather, it was performed to assist the regular occupant. Further, the Carrier
argues that Rule 25 preserves the Carrier's prerogative to use Carmen from
other seniority points.
The Carrier additionally maintains that under past practice, it has
not been required to recall furloughed Carmen for such incidental work. The
Carrier argues that it is not required to recall furloughed Carmen unless it
is clear that an assignment of a forty-hour week is available. Also, the
Carrier contends that Rule 9 of the Agreement allows it to send regularly
assigned employees to outlying points as temporary transfers.
The Carrier therefore contends that Claimant was not subject to
recall to perform the disputed work. The Carrier contends that the Claim is
without merit and should be denied in its entirety.
The Board has reviewed all the evidence in this case, including the
numerous contractual provisions that have a bearing on this dispute. It is
clear that Claimant was a furloughed Carman holding seniority at Rumford. It
also is clear that the work performed by Carman P. P. Perry at Rumford fell
within the territory covered by the Rumford seniority point, and, therefore,
if the contract required the Carrier to recall any Carman employee from
furlough to perform the work involved in this case, then Claimant would have
been the one.
The Carrier has claimed, however, and the Organization has presented
no evidence in Rebuttal, that there has been an established past practice
between the parties that the Carrier is not required to recall a furloughed
Carman to perform incidental work. Moreover, the Carrier has claimed, once
again without Rebuttal by the Organization, that it has been a past practice
that the Carrier is not required to recall a furloughed Carman unless it is
clear that an assignment of forty hours if work is available. Because the
amount of time at issue is only 8 hours, and because the employee from the
other seniority point was brought in to assist only briefly in the work, this
Board finds that there was not any contractual or past practice requirement
that the Carrier recall Claimant to perform work of such short duration.
Therefore, this Board finds that the work involved was temporary, incidental
work and nothing in any of the cited contractual provisions required that the
Carrier recall Claimant from furlough to perform it.
In so holding, this Board finds it necessary to point out that it is
not unmindful of the importance of point seniority. Furthermore, this case
comes to the Board accompanied by six companion cases that involve the same
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2-MC-CM-'86
Claimant grieving the identical practice by the Carrier. It is noteworthy
that the other six dates of the alleged wrongdoing were sufficiently close
together in time, although not all in the same forty-hour week, to raise some
question as to whether the Carrier is attempting to fully respect the concept
of point seniority and the necessity of recalling employees furloughed from
the point where the work is required rather than transferring in employees
from o-ther points.
This Board recognized the importance of the issue raised by the
Organization and will not condone any Carrier attempt to circumvent the
requirement of recalling furloughed employees at the proper point.
The temporary and incidental nature of the work in this case,
however, consisting of different work on different cars than were involved in
the companion cases, makes it evident that there is no such attempt by the
Carrier here. This work is incidental and legitimately temporary. Hence, the
Claim is denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
00
Attest:
ancy J. - Executive Secretary
Dated at Chicago, Illinois, this 26th day of March 1986.