Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10980
SECOND DIVISION Docket No. 10715
2-SP-CM-'86
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Southern Pacific Transportation Company
(Eastern Lines)
Dispute: Claim of Employes:
1. That the Southern Pacific Transportation Company (Eastern Lines)
violated the controlling agreement particularly Rules 117 and 29, when they
arbitrarily transferred nine (9) bad ordered cars from their Houston Car Heavy
Maintenance Plant, Houston, Texas to be repaired at the GATX Plant in Hearne,
Texas, June 10, 1983.
2. That accordingly, the Southern Pacific Transportation Company
(Eastern Lines) be ordered to divide equally eighty hours (80) at overtime
rate among the following Carmen:
F. R. Macias L. E. Jezek
C. D. Lopez P. Y. Lopez
D. 0. Billings J. Mata
J. E. Palmer P. Govella
J. G. Varela C. Esparaza
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 events giving rise to the instant Claim occurred at the Carrier's
Houston Car Heavy Maintenance Plant located at Houston, Texas.
Form 1 Award No. 10980
Page 2 Docket No. 10715
2-SP-CM-'86
On June 10, 1983, a group of cars were out of service and awaiting
wheel and axle assemblies at various locations, in Houston, Texas. A hospital
train was prepared and the cars were dispatched to GATX Plant, Hearne, Texas
for repair. With the filing of the instant Claim, the Organization contends
that the Carrier violated Rules 117 and 29 of the Controlling Agreement
because it failed to keep the car at its Houston facility to be worked by the
Claimants who are Carmen.
Rule 117, the Classification of Work Rule, provides that Carmen's
work "shall consist" of duties that are enumerated within the Rule. Rule 29
provides that "none but mechanics or apprentices regularly employed" shall
perform "mechanics' work as per the special rules of each craft ***." These
Rules contemplate that the Carrier, which is a party to the Agreement with the
organization, has control over the work to be performed. In this case, the
cars in dispute were not owned or controlled by the Carrier; rather, they were
the property of the GATX Corporation. The Carrier did not have the materials
needed to repair the cars. As a consequence, GATX requested the Carrier to
send the cars to its home shop for repairs. Pursuant to AAR Rules, private or
foreign line car owners have the prerogative, when one of their cars becomes
bad ordered, to either direct the Carrier to repair the car or direct it to
send the car to the home shop for repairs by the owner or a contract shop. In
compliance with the AAR Rules, the cars in question were returned to GATX.
There is nothing in the record to indicate that the Organization has
been granted the exclusive right to perform work on privately owned cars. To
be sure the Agreement does not provide for such an exclusive right; nor has
the Organization demonstrated a past practice to support its Claim. In Second
Division Award No. 7584, the following was stated:
"Numerous awards have held that a Carrier
is not responsible for assigning work on property
which it neither controls nor legally owns. This
Board recognizes and adheres to this principle.
In this case the Carrier had no ownership rights
in the transformer. In the absence of such ownership rights or the right to control the work, the
Carrier did not have the legal power to assign the
transformer work to its employes. Without this
legal power and authority the Carrier could not
violate the classification of work rule or its
subcontracting agreements. The claim therefore,
must be denied."
The Claim is denied.
Form 1 Award No. 10980
Page 3 Docket No. 10715
2-SP-CM-'86
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
0000~'~
Attest:
Nancy J 401wier - Executive Secretary
Dated at Chicago, Illinois, this 10th day of September 1986.