Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11039
SECOND DIVISION Docket No. 10586-T
2-SOO-CM-'86
The Second Division consisted of.the regular members and in
addition Referee Elliott H. Goldstein 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, 31 and 94 of the Shops Craft Agreement, as amended, and
Article VI, "Coupling, Inspection and Air Test", of the 1975 National Agreement, when on September 4, 1982, the Soo Line Railroad Company ordered and
allowed the Switchmen at Rices Point to perform the carmen's work of coupling,
inspection and air test of trains, where carmen have previously performed such
work on Saturdays.
2. That the time limit provisions of the agreement were violated
when Foreman R. J. Erkel failed to give reasons for denying the claim in his
letter to the Local Chairman dated September 28, 1982.
3. That accordingly, the Soo Line Railroad Company be ordered to pay
Carman Donald Noble, Superior, Wisconsin, penalty time of eight (8) hours at
time & one-half at carmen's rate of pay on September 4, 1982 for not being
allowed to perform the carmen's work of coupling, inspection and air test
trains at Rices Point, 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.
Claimant is employed by the Carrier at the Carrier's repair facility,
Belknap Yards, Superior, Wisconsin. On Monday through Friday, the Carrier has
assigned Carmen to perform duties at its Rices Point Yard. If there was not
sufficient work for the Carmen at the Rices Point Yard, then the Carmen would
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Award No. 11039
Docket No. 10586-T
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return to the Belknap Repair Shops to finish their shift. Prior to the date
that this Claim arose, when there was a switching job performed at Rices Point
on Saturday, coupling, inspection and air test work that was needed to be
performed on cars that were eventually taken to various grain elevators,
interchange yards or elsewhere was performed by a Carman.
On Saturday, September 4, 1982, Claimant was not on duty. On that
date a Switchman, rather than Claimant performed coupling, inspection and air
test work on cars at the Rices Point Yard. As a result of a decline in
business, the Saturday work previously performed by a Carman had been eliminated by the Carrier. According to the Carrier, it could not justify sending
a Carman to the site of the work on Saturday and provisions exist for Switchmen to do this work.
On September 27, 1982, the Organization's Local Chairman filed the
instant Claim. On September 28, 1982, Carrier denied the Claim using what
appears to be a pre-printed form as follows:
"S00 LINE RAILROAD COMPANY
To: Steve Flagstad
Local Chairman
Carman Lodge 661
Fr: Robert J. Erkel
Loco. & Car Foreman
Soo Line Railroad
Superior, Wisconsin 54880
Date: Sept. 28 1982
Time claim submitted Sept 27th 1982 on behalf of
Don Noble are denied.
No rules violated."
The underscored portions were filled in by hand.
Initially, the Organization argues that the Claim should be sustained
since the above quoted September 28, 1982 letter from the Carrier does not
comply with Rule 31 of the Controlling Agreement in that no reasons were given
for denying the Claim. Rule 31 states:
"1. All claims and grievances must be presented
in writing by or on behalf of the employee involved,
to the officer of the Carrier authorized to receive
same, within 60 days from the date of the occurrence
on which the claim or grievance is based. Should
any claim or grievance be disallowed, the Carrier
shall, within 60 days from the date same is filed,
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notify whoever filed the claim or grievance (the
employee or his representative) in writing of the
reasons for such disallowance. If not so notified,
the claim or grievance shall be allowed as pre
sented, but this shall not be considered as a
precedent or waiver of the contentions of the
Carrier as to other similar claims or grievances."
Prior Awards have considered this issue. Where no reasons are given
for declining a claim, or where the denial is simply pro forma to meet time
limits in a contract, claims have been sustained for failing to give reasons
in such denials. Second Division Award Nos. 9198, 7500, 7371, and 7349. However, where a Carrier denies a claim stating that the denial is based upon the
claim not being supported by any rule, the requirement of stating reasons in
the denial has been met. Third Division Award No. 21132, Second Division
Award No. 10721. Indeed, even in the Awards holding that pro forma denials
are insufficient, those Awards state that where the denial is based upon the
lack of a violation of rules, the denial is sufficient. See Second Division
Awards Nos. 9198; 7500; and 7371. Here, the denial clearly states "No rules
violated." On the basis of the foregoing Awards, such a denial was sufficient.
With respect to the merits of the Claim, the Organization argues that
Rules 27, 28 and 94 of the Controlling Agreement have been violated since
Carmen previously performed the work and a decline in business is not a
defense to a claim for the work. On the other hand, the Carrier advances
three positions. First, the Carrier asserts that the Claim should be denied
since the Rices Point Yard is not a departure yard; therefore making Article
VI of the December 4, 1975 Agreement not applicable. Second, the Carrier
asserts that the work involved is not exclusively reserved to the Organization
by rule, agreement, or practice. Third, the Carrier argues that there was not
sufficient work at Rices Point or Belknap Yard to justify employing Carmen at
Rices Point.
We find it unnecessary to address all of the defenses raised by the
Carrier. It is undisputed in this record that the Saturday Carmen's work at
Rices Point was changed due to a decline in the Carrier's business and
further, even when there is Carmen's work at Rices Point, such work is not
always of a full time nature, but instead the work available there has been
performed by Carmen, and, when finished, the Carmen then completed their shift
at the Belknap Repair Shop. It is further undisputed that on the Saturday in
question, no Carman was on duty. Article VI of the December 4, 1975 Agreement
seems to control this case.
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Article VI protects Carmen's work from being assigned to employes
other than Carmen, except where there is not sufficient amount of work to
justify employing a Carman. The burden is on the Organization to prove all
the essential elements of its Claim. We are not satisfied that, in light of
the original part-time nature of the Carmen's work at Rices Point, the
admitted decline in business and the fact that no Carman was on duty on the
Saturday in question, that the Organization has satisfied its burden in this
case of showing that there was sufficient amount of work available. Without
such a showing, the Claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. e.~ - Executive Secretary
Dated at Chicago, Illinois, this 15th day of October 1986.