Form 1 NATIONAL RAILROAD ALUUSTMENT BOARD Award No. 11085
SECOND DIVISION Docket No. 11057
2-AT&SF-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:
(The Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employes:
1. That the Atchison, Topeka and Santa Fe Railway Company violated
the controlling Agreement, specifically Rule 32(b), when it abolished all the
positions and furloughed all the carmen at Hurley, New Mexico. And then
knowingly and arbitrarily instructed and/or allowed carmen from another
seniority point to go into the seniority point of Hurley, New Mexico and
perform carmen's work, even though the carmen who were furloughed at Hurley
continued to hold seniority rights at Hurley, New Mexico point.
2. That accordingly, The Atchison, Topeka and Santa Fe Railway
Company be ordered to compensate Carmen Manuel V. Martinez and G. L. Chip each
in the amount of eight (8) hours at the pro rata rate of pay, for each day of
November 12, 15, 16, 17, 21, 22, 29 and 30, 1983.
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.
Claimants were employed as Carmen by Carrier at its Hurley, New
Mexico point. As of the end of the shift on April 30, 1982, all Carmen
positions at Hurley were abolished and the Claimants were furloughed. The
Claimants thereafter maintained their seniority in accordance with the current
Agreement. On November 12, 15, 16, 17, 21, 22, 29, and 30, 1983, the Carrier
assigned Carmen from a seniority point other than Hurley to perform Carmen's
work there. The Organization subsequently filed a Claim on the Claimants'
behalf, challenging this assignment of work when Claimants were available,
qualified, and willing to perform the work.
Form 1 Award No. 11085
Page 2 Docket No. 11057
2-AT&SF-CM-'86
The organization points out that Rule 32(b) of the current Agreement
provides:
"Seniority of employes covered by this Agreement
shall be confined to the point or district in
which employed."
The Organization contends that it is undisputed that the Carrier assigned
Carmen from a seniority point and district other than Hurley to perform work
there. The Organization further asserts that when Carmen's work must be
performed at Hurley, only Carmen with seniority at Hurley are contractually
entitled to perform the work. The Organization therefore argues that the
Carrier violated Rule 32(b) by assigning Carmen from another point to perform
Carmen's work at Hurley.
The Organization also maintains that this Board previously has held
that seniority points continue to exist after the employes are furloughed;
only craft employes holding seniority at a particular point may perform craft
work at that point. The Organization asserts that the Claimants were available, qualified, and willing to perform the disputed work. Moreover, the
reason for Claimants' furlough has no bearing on this matter; it is not relevant to the issue of whether the Carrier violated Rule 32(b).
The organization further argues that neither Rule 16(a) nor Rule
24(d) applies; the disputed wnrk was sporadic and of less than thirty days'
duration so it does not meet the criteria warranting the bulletining of jobs.
Moreover, Rule 36(b) also does not apply; the Carrier could not assign the
Carmen's work at Hurley to mechanics of other crafts employed at the point
because there were no mechanics of other crafts employed at Hurley. The
Carrier cannot use the unavailability of Rule 36(b) to justify its violation
of Rule 32(b). The Organization further asserts that there is no past
practice that supports the Carrier's action; although there may be prior
instances involving Carmen doing Carmen's work at points other than where they
hold seniority, the Organization did not file challenges because there no
longer were Carmen holding seniority at the point where the work was performed
or because the incident occurred without the Organization's knowledge. The
Organization argues that its failure to file exceptions in the past does not
justify the Carrier's violation of Rule 32(b).
The Organization also argues that Rule 12, governing emergency road
work, does not support the Carrier's action. The disputed work was not
emergency road work, but routine inspection and repair. Moreover, Rule 12
does not authorize the Carrier to transfer Carmen from one seniority point to
another to perform Carmen's work if there are Carmen, holding seniority at the
latter point. The Organization therefore argues that the Claim should be
sustained; the Claimants each should be ccmpensated in the amount of eight
hours' pay at the pro rata rate for each day at issue.
Form 1 Award No. 11085
Page 3 Docket No. 11057
2-AT&SF-CM-'86
The Carrier contends that the Claimants had the right to perform
Carmen's work at Hurley when they were assigned to existing positions at
Hurley; when those positions were abolished, Claimants no longer had the
exclusive right to Carmen's work there. Moreover, nine of the thirty-seven
hours of work at issue were performed at Deming, not Hurley; because neither
Claimants or any other Carmen hold seniority at Deming, no Carmen have the
exclusive right to Carmen's work at that point.
The Carrier also argues that neither Rule 32 nor any other Rule
required it to utilize furloughed Carmen for the small amount of disputed
work. Rule 32 is a seniority rule; it does not govern work assignments at a
particular location, or who will perform work when there is not enough work to
warrant retention of a position.
The Carrier contends that under Rules 16(b) and 24(d), it is
contemplated that the Carrier will recall furloughed Carmen when there is
full-time employment for Carmen on a regular basis. These Rules do not
require the Carrier to recall furloughed Carmen for sporadic work. The
disputed work was sporadic, averaging less than two hours per day; it does not
qualify as full-time employment.
In addition, the Carrier argues that on several past occasions, it
assigned active Carmen to perform work at other points where all Carmen had
been furloughed because of lack of work. In such cases, the active Carmen
have been compensated pursuant to Rule 12(a), governing emergency road work,
whether or not the work was of an emergency nature. The Carrier points out
that the organization never challenged this handling on these past occasions.
The Carrier therefore contends that the organization acquiesced in the
Carrier's handling. The Carrier asserts that on these past occasions, there
were Carmen holding seniority at the location when the work was performed.
Moreover, the Organization's assertion that it was unaware of these incidents
is not believable. The organization is aware that when the last Carman at a
particular point is furloughed, there usually remains a small amount of
Carmen's work at the point. Also, the Organization was aware of this past
practice through two prior Claims, based on other grounds, that it made in
incidents involving Carmen performing work at other points from which Carmen
had been furloughed; the organization did not object to this practice on
either occasion. The Carrier argues that the organization historically has
recognized the Carrier's right to utilize active Carmen to perform work at
other points where there are no regularly assigned Carmen due to lack of work.
The Carrier finally argues that even if the Claim has merit, the
Claim for compensation is excessive. The Carrier points out that Deming is
not part of any seniority point or district; the Claimants have no exclusive
right to any of the disputed work performed there. Moreover, the Carrier
would not be liable for any payment beyond the pro rata rate for the actual
time spent performing the work; the Carrier would not be liable for eight
hours' pay for any day on which less than eight hours' work was performed.
Form 1 Award
No.
11085
Page 4 Docket No. 11057
2-AT&SF-CM-'86
The Carrier ultimately argues, however, that the Claim is without -
merit and should be denied.
This Board has reviewed the evidence in the record, and we find that
the Carrier had sufficient reason to abolish the positions because of the
general decline in business to the point where it was no longer economically
feasible to have Carmen assigned at Hurley. The decline in business was so
great that the Organization has not even challenged the Carrier's right to
abolish the positions for lack of work.
With respect to the organization's challenge of the Carrier's
practice of utilizing active Carmen from another point to perform the
necessary car repair c.,iork at Hurley rather than using the furloughed
Claimants, this Board finds that the Claimants' right to work was limited to
work at Hurley when they were assigned to Hurley. Once their positions at
Hurley were abolished, they no longer had the exclusive right to the work
there.
Moreover, with respect to the work at Deming, the cork there did not
belong exclusively to the Hurley Carmen even when they were still in active
service. Hence, once they were laid off, the Carrier had the right to assign
that work to others.
This Board also finds that Rule 24(d) contemplates returning fur
loughed employes to service, but it does not apply to furloughed Carmen who
are needed on a sporadic basis to perform an insignificant amount of work.
_w
In this case, the evidence reveals thirty-seven man-hours of work spread over
a nineteen-day period. The Carrier is not in violation of the Rule for
assigning employes other than the Claimants and not recalling the Claimants to
perform the modest amount of work involved here.
A W A
R D
Claim denied.
NATIONAL
RAILROAD ADJUSTMENT
BOARD
By Order of Second Division
Attest:
Nancy J 4*0-- Executive Secretary
Dated at Chicago, Illinois, this 3rd day of December 1986.
LABOR MEMBERS DISSENT
TO
AWARD LN0.11085, (DOCKET NO. 11057)
(Referee Peter R. Meyers)
The Majority grossly erred in their decision
when denying the Claim of the Employes in this Award.
The Majority without Agreement support erroneously
stated:
"With respect to the organization's
challenge of the Carrier's practice
of utilizing active Carmen from another
point to perform the necessary car repair
work at Hurley rather than using the furloughed
Claimants, this Board finds that the Claimants'
right to work was limited to work at Hurley
when they were assigned to Hurley. Once
their positions at Hurley were abolished,
they no longer had the exclusive right to
the work there.
Moreover, with respect to the work at Deming,
the work there did not belong exclusively to
the Hurley Carmen even when they were still in
active service. Hence, once they were laid
off, the Carrier had the right to assign that
work to others."
Contrary to this erroneous statement,the Agreement
provides that seniority of the Employes is confined to
the point employed and the fact that they are furloughed
does not remove their seniority from them.
Labor Members Dissent
To Award No. 11085
(Docket No. 11057)
-
vow
2 -
Previous Board Awards have upheld this position,
as stated in Second Division Award 665 (Referee I. L.
Sharfman)
"Since, under the provisions of Rule 30,
the Chicago carmen and helpers held no
seniority rights at Des Moines, their
performance of work at that point on
August 15, 16, and 17, 1940, constituted
a violation of the agreement."
in Second Division Award 3818 (Referee Mortimer Stone)
held:
"While claimants' seniority was 'confined to,_,~r
the point employed' it was not conditioned
on maintaining a car department there and it
gave them the seniority right to perform the
work of their craft if and when it existed
at that point, as furloughed employes."
The Majority obviously cannot find any precedent
(other than his own previous Awards) that support
this erroneous decision, therefore, does not cite any.
Labor Members Dissent
To Award No. 11085
(Docket No. 11057)
- 3 -
For these reasons, we vigorously dissent.
qW4,-~