Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11135
SECOND DIVISION Docket No. 10863
2-MP-CM-'87
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company violated Rule 16 of
the controlling Agreement when their General Forman G. N. Lofton posted
notice dated June 17, 1983, File 136, changing the manner in which Carmen were
to lay off.
2. That accordingly, the Missouri Pacific Railroad Company be ordered to rescind the notice of June 17, 1983 and their supervisors be informed
to comply with the provisions of the Agreement.
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.
On June 17, 1983, the General Car Foreman posted a notice to all Carmen which read as follows:
HALL CABMEN
Effective immediately, all laying off or. requests
for personal days will be handled through this
office or with the General Foreman on duty. If you
are unable to contact your General Foreman or this
office, it will be permissible to contact the North
End Console Foreman at 373-2386. Requests for
laying off or personal days will not be accepted
unless handled as outlined above."
Form 1 Award No. 11135
Page 2 Docket No. 10863
2-MP-CM-'87
The organization argued on property that the above posted notice constituted a violation of Rule 16 of the Agreement in that it requested a change
in past practice at North Little Rock where layoff requests had been handled
through the Car Foreman or Locomotive Foreman. Under the above posted notice
such authority was removed and transferred to the General Car Foreman or
General Foreman on duty. For employees who requested a layoff, such request=,
went beyond Rule 16 in that the Supervisor was no longer the Foreman that the!
Carmen worked under as required by the Rule which states:
"Rule 16.
ABSENCE
FROM WORK
WITHOUT LEAVE
Employes shall not lay off without first obtaining
permission from their supervisor to do so, except
in cases of sickness or other good cause of which
the supervisor shall be promptly advised."
The Organization maintains that said notice changes the Agreement without proper notice and therefore requests this Board to rescind the notice as violative of the Agreement.
The Carrier denied on property that the notice was either new or in
violation of the Agreement. The Mechanical Superintendent's letter pointed
out that such "instructions have been in effect for years, and have been
reissued from time to time. . . ". He disputed any violation of the intent of
the Rule noting that the "general foreman is a supervisor of shop crafts." 7:t
is the Carrier's position that the instructions are not new, do not violate
the Rule in that the reporting is to a Supervisor and in no way alters the
intent of the Rule by placing any particular burden upon the employes.
In the instant case the language of Rule 16 modifying "Supervisor"
uses "their" and "the" which designate a Supervisor with authority over the
Carmen. There is nothing in the rule to specify or directly identify which
Supervisor employees should contact for permission. Although the organization
claims that past practice on the property has been to contact the immediate
Supervisor, it has presented no probative evidence to substantiate its position which is denied by the Carrier. In the absence of such factual evidence
and within the language of the Rule, the Claim cannot be sustained.
In addition this Board takes note the case at bar requests a declaratory judgment. No Claimants are named and there is herein no request for
monetary reimbursement for any Agreement violation. Instead, this Board is
being asked to provide injunctive relief which under the Railway Labor Act it
has no authority to grant. Lacking evidence of past practice, clear contract:
language violation, and the authority to grant injunctive relief, the Claim
must be denied (Second Division Awards 10708, 6160, 4264).
Form 1 Award No. 11135
Page 3 Docket No. 10863
2-MP-CM-'87
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ate. -Executive Secretary
Dated at Chicago, Illinois, this 28th day of January 1987.