Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10996
SECOND DIVISION Docket No. 10704-T
2-S00-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:
(Soo Line Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement, the Soo Line Railroad Company
violated Rules 27, 28, 94, 99 and 100 of the Shop Crafts Agreement, Article 6,
"Coupling, Inspection and Air Testing" of the 1975 National Agreement and the
understanding of F.R.A. Rule 232.12 Par. (D) when the Soo Line Railroad Company denied its Carmen employes working at Humbolt Yard, a departure yard, the
Carmen's work of coupling, inspecting and air testing of trains, which were
formerly known as the M.N.&S. pick up, prior to the Soo Line Railroad Company
purchasing the M.N.&S. Railway property.
2. That accordingly, the Soo Line Railroad Company be ordered to
compensate Carmen Inspectors K. Johnson, S. Sperstad, P. Huseby, R. Castro, M.
Gaffeney and M. Wuollet, who were denied their contractual rights to perform
the Carmen's work of coupling, inspection and air testing of trains, for 2-2/3
hours, "call time", at time and one-half to be divided equally, for each day,
effective January 31, 1983 and until dispute is settled. Claim was filed on a
continuing basis, Sunday thru Thursday, when trains were made up in Humbolt
Yard, due to the Soo Line Railroad Company continually violating the Rules.
In addition to time claimed for each day Sunday thru Thursday, the following
dates are claimed on Friday and Saturday when trains were made up and Carmen
available, were not allowed to couple, inspect and air test the train, are
dates of May 6, 7, 27, June 3, 4, July 1, 29, August 19, September 9, 10, 17,
23, 24, October 16, 22, 28, 29 November 5, 19, 26 and December 3, 1983. It is
to be noted, that names of Claimants have and may further be changed during
the handling of this claim, due to bidding on or off of the Carman Inspector
positions.
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.
Form 1 Award No. 10996
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This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Having received authorization from the Interstate Commerce Commission, the Carrier, on June 4, 1982, purchased all of the outstanding stock of
the Minneapolis, Northfield and Southern Railway Company (MN&S). The
Companies were maintained as separate entities but certain operations were
coordinated.
Effective January 31, 1983, the Carrier and MN&S Carmen rosters were
dovetailed in the order of seniority based on the seniority dates of Carmen on
their respective rosters in accordance with the implementing Agreement between
the Carrier and Brotherhood of Railway Carmen.
The Claimants are employed by the Carrier as Carmen at the Carrier's
repair facility at Shoreham Shops, Minneapolis, Minnesota. Pursuant to its
Claim, the Organization contends that on various dates in 1983 the Carrier
violated the Agreement because it denied the Claimants at the Humboldt Yard,
"the carmen's work of coupling, testing and air testing of trains which were
formerly known as the MN&S Pick Up, prior to the purchase of the MN&S Railway
property by the Carrier."
In support of its position, the Organization asserts that the work in
question on MN&S trains at Humboldt Avenue Yard is governed by the Carrier's
Agreement with the Carmen. After carefully examining the record, the Board
cannot agree with the position of the Organization. Before the coordination
of the train operations of the Carrier and MN&S, each property was operated
independently as a separate entity. Prior to March 27, 1984, when train
operations were coordinated, and the MN&S and UTU Agreement was abrogated, the
Carrier's Carmen Agreement governed air hose and air testing operations solely
on the Carrier's property. Moreover, prior to the coordination, MN&S Trainmen
had performed air tests on transfer cars interchanged at the Carrier's Humboldt Avenue Yard facility. No changes in the MN&S transfer were instituted
by the Carrier prior to March 27, 1984, and the Carrier continued to assign
the work of air hose coupling, inspection and air tests to Trainmen following
the consolidation of the Carmen's roster on January 31, 1983. An MN&S and UTU
Agreement required that the Carrier retain air coupling practices in effect,
pending an implementing Agreement with the UTU, which changed the Rule and
coordinated the operations. No part of the Implementing Agreement reached
between the Carrier and the Carmen provides the air coupling work on the MN&S
transfers was reserved exclusively to the Carrier's Carmen. It should be
noted, however, that the MN&S Trainmen retained a right to the work. Furthermore the MN&S Carmen's Rules were abrogated. Accordingly, the work claimed
was not governed by the Carrier and Carmen's schedule of Rules and Agreements
on the date of the Claim.
Form 1 Award No. 10996
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2-500-CM-'86
Furthermore, Carmen have never performed air coupling on MN&S trains
at Humboldt Yard. MN&S Trainmen and Yardmen have always coupled air hose and
tested air brakes on trains at the Humboldt Yard facility. Thus, the work
claimed by the Organization has not been reserved exclusively to the Carmen
under Rule 94, the Classification of Work Rule. Second Division Award No.
4648 states the following:
"The coupling of air hose and testing air brakes in
connection with the movement of trains has been
recognized as a function of and belonging to trainmen by our awards between these parties, listed
above, [Award Nos. 3335, 3339, 3340, 3714, 4209,
4210, 4239, and 4240], and throughout the railroad
industry. Hence, this scope rule does not support
the claim."
Since the Classification of Work Rule (Rule 94) does not exclusively
reserve the work in question to Carmen, Rules 27 and 28, which covers seniority and assignment of work, respectively, have no application to the instant
case. Nor do Rules 99 and 100, which refer to Inspectors, support the contention that the work is reserved exclusively to Carmen.
The Organization also contends that the Carrier violated Article VI
of the 1975 National Agreement. To prove such a violation, the Organization
is required to satisfy its burden of proving that the Carrier is required to
use Carmen for coupling, inspecting and testing. Article VI of the 1975
National Agreement applies only where Carmen performed the work set forth in
the Rule. There is no evidence that the Carmen have ever performed the work
at the Humboldt Yard facility. Since Carmen have never performed the work set
forth in this Rule on MN&S trains, the Carrier was not prohibited from assigning the work to Trainmen on the dates that are claimed. Accordingly, Article
VI of the 1975 Agreement was not violated by the Carrier.
Finally, it should be pointed out that the record warrants the conclusion that the trains in question on the dates specified in the instant
Claim are MN&S trains. The trains were manned by MN&S crews, working under an
MN&S schedule; and the transfer took place on MN&S property and was responsible for the interchange between MN&S and the Carrier.
Form 1 Award No. 10996
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 17th day of September 1986.