Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11088
SECOND DIVISION Docket No. 11062-T
2-TRASD-CM-186
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: (
(Terminal Railway Alabama State Docks
Dispute: Claim of Employes:
1. That the Terminal Railway Alabama State Docks, hereinafter
referred to as the Carrier, violated the Agreement when it assigned other than
Carmen to couple, inspect, and test air brakes on trains in the train yards on
August 28 and 30 and September 11, 1984, at Mobile, Alabama.
2. And accordingly, the Carrier should be ordered to compensate
Carmen W. H. Shields, W. M. Moody and C. H. Stewart, hereinafter referred to
as the Claimants, two (2) hours and forty (40) minutes each at time and
one-half as the result of said 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.
Claimants are employed as Carmen by the Carrier at its Mobile,
Alabama Train Yard. On August 28, 30, and September 11, 1984, Carrier
assigned employes other than Carmen to couple, inspect, and test air brakes on
trains in the Yard. The organization subsequently filed a Claim on the Claimants' behalf, seeking compensation for each Claimant in the amount of two
hours and forty minutes pay at the time and one-half.rate.
The Organization asserts that when the Carrier assigned employes
other than Carmen to perform work that previously had been performed by Carmen
at Mobile Yard, the Carrier violated Articles V and VI of the 1964 and 1975
National Agreements, respectively, which provide, in part:
Form 1
Page 2
Award No. 11088
Docket No. 11062-T
2-TRASD-CM-'86
"(a) In yards or terminals where carmen in
the service of the carrier operating or servicing
the train are employed and are on duty in the
departure yard, coach yard or passenger terminal
from which trains depart, such inspecting and
testing of air brakes and appurtenances on trains
as is required by the carrier in the departure
yard, coach yard, or passenger terminal, and the
related coupling of air, signal and steam hose
incidental to such inspection, shall be performed
by the carmen."
"(c) If as of July 1, 1974 a railroad had
carmen assigned to a shift at a departure yard,
coach yard, or passenger terminal fran which
trains depart, who performed the work set forth in
this rule, it may not discontinue the performance
of such work by carmen on that shift and have
employees other than carmen perform such work (and
must restore the performance of such work by
carmen if discontinued in the interim), unless
there is not a sufficient amount of such work to
justify employing a carman.
(d) If as of December 1, 1975 a railroad has
a regular practice of using a carman or carmen not
assigned to a departure yard, coach yard or
passenger terminal from which trains depart to
perform all or substantially all of the work set
forth in this rule during a shift at such yard or
terminal, it may not discontinue
or carmen to perform substantially al
during that shift unless there is not
work to justify employing a carman.
(e) If as of December 1, 1975 a railroad has
a regular practice of using a carman not assigned
to a departure yard, coach yard or passenger terminal from which trains depart to perform work set
forth in this rule during a shift at such yard or
terminal, and paragraph (d) hereof is inapplicable, it may not discontinue all use of a carman
to perform such work during that shift unless
there is not sufficient work to justify employing
a carman."
use of a carman
1 such work
sufficient
The Organization asserts that because the disputed work was performed on
Carrier property where Carmen are employed, the work should have been performed by Carmen under these provisions of the Agreement.
Form 1 Award No. 11088
Page 3 Docket No. 11062-T
2-TRASD-CM-186
The organization asserts that under Rule 48, which provides:
"Cayman's work shall consist of building, maintaining,
dismantling, painting, upholstering, and inspecting
all passenger and freight cars, . . . and inspection
work in connection with air brake equipment on freight
cars..."
braking apparatus must be inspected as part of a proper brake test. Moreover,
it is undisputed that trains were made up in a yard where Carmen were
employed. The Organization therefore argues that the disputed work should
have been done by Carmen, and this Claim should be sustained. The Organization also argues that in the first step of the handling of this Claim on the
property, the Carrier did not give a reason for denying the Claim; the Claim
should be sustained on this ground alone.
The Carrier points out that it does not operate over-the-road trains,
but operates only a switching terminal that handles cuts of cars in intra-yard
movements. The Carrier argues that the accepted practice has keen for Switchmen and Carmen to share in the coupling of air hoses and testing of air
brakes. Switchmen take part in this work only when it is incidental to the
movement of the cars they are handling; they do not get involved in this work
when it is incidental to inspection and repair of cars.
The Carrier asserts that this air work always has been included in
the Switchmen's regular duties and is included in their Agreement. Moreover,
the disputed work was performed in accordance with the accepted practice; the
Carrier contends that the disputed work never has been considered exclusively
Carmen's work. The Carrier also argues that because it operates only a switching yard, this case does not meet all the conditions for assignment of the
work to Carmen; trains are not tested, inspected, or coupled in a departure
yard or terminal, nor do they depart from a departure yard or terminal.
This Board has reviewed the evidence in the record, and we find that
the relied-upon Agreement provisions do not grant Carmen the exclusive right
to couple air hoses and make air tests when cuts of cars are moved from one
yard to another and no mechanical inspection is performed. In this situation,
the Carrier operates only a switching terminal that handles only cuts of cars
in intra-yard movements. It does not operate over-the-road trains.
The record is clear that the accepted practice has been for the
Switchmen and Carmen to share in this coupling of air hoses and testing of air
brakes.
As has been stated many times, in interpreting Article V of the 1964
National Agreement, this Hoard has adhered to the three criteria annunciated
in Second Division Award 5368. The third criterion in that Award was that the
train involved departs the departure yard or terminal; Carmen must meet all
three criteria in order to establish a right to the work. In this case, the
cut of cars moved from one yard to another and did not depart the yard or
terminal. Hence, the Petitioner did not prove that that criterion was met.
As was stated in Second Division Award 6827:
Form 1 Award No. 11088
Page 4 Docket No. 11062-T
2-TRASD-CM-' 86
"
Nowhere in any of those Awards did the Board
sustain Petitioner's position where it was not
shown that the cars involved departed the terminal
or yard limits
...
the Petitioner must prove an
actual departure from the yard or terminal in
question."
Also see Second Division Award 6999.
In the case at hand, the Petitioner has not met its burden of proof
in showing that the Carmen had exclusive right to the work.
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 3rd day of December 1986.