Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11170
SECOND DIVISION Docket No. 10073
2-NRPC-F&0-'87
The Second Division consisted of the regular members and in
addition Referee John
,;r,
Mikrut, Jr. when award was rendered.
(International Brotherhood of Firemen and Oilers
Parties to Dispute:
(National Railroad Passenger Corporation
Dispute: Claim of Employes:
1. That the National Railroad Passenger Corporation violated the
Controlling Agreement when they furloughed Laborer C. L. Hamilton on March 7,
1981 and Laborers L. G. Eskridge and Wiley Johnson on April 1, 1981.
2. That accordingly, the National Railroad Passenger Corporation be
ordered to provide protection ago provided for under Rule 12 of the Controlling
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.
Claimants were assigned as Laborers at Carrier's St. Louis, Missouri
Diesel facility and were primarily responsible for fueling locomotives. In
March and April of 1981, Claimants were furloughed without application of
Appendix C-2 protective benefits. As a result of these unprotected furloughs,
organization filed a Claim alleging that Carrier's action was a violation of
Rule 12 of the Controlling Agreement which reads as follows:
"RULE 12
TRANSFER OF WORK-ABANDONMENT OF FACILITIES:
(a) The protective benefits of Appendix C-2 of
the Rail Passenger Service Act, as amended, shall
be applicable, as more specifically outlined below,
with respect to employes who are deprived of employ
ment or placed in a worse position with respect to
compensation and rules governing working conditions
as a result of any of the following changes in
operations:
Form 1 Award No. 11170
Page 3 Docket No. 10073
2-NRPC-F&0-'87
According to Carrier, "topping off" was discontinued at St. Louis because, in
1978, Carrier began introducing more fuel efficient locomotives (F-40's) with
a larger fuel capacity (1800 gallons) than those which had been used previously (E-8's with a capacity of 1200 gallons of fuel). Thus, Carrier argues
that these factors
"...
combined to reduce the risk of running out of fuel
between fueling stations
...
(and) :.. (A)ccordingly, the practice of
filling the engines at St. Louis was discontinued." As a consequence of
these
developments, Carrier
attributes Claimants' resultant furloughs to a discontinuance of work (which is not protected by Rule 12), rather than a transfer
of work (which is protected by said Rule).
In addition, Carrier also argues that after repeated requests on
Carrier's part, Organization failed to document or identify the sites where
the disputed fueling work was allegedly transferred, thereby failing to sustain its burden of proof.
Organization counters Carrier's contentions by arguing that Carrier's
equipment cannot function without fueling whether the process begins with a
locomotive's empty tank or is merely "topping off" as Carrier argues. Accordingly, Organization asserts thavt regardless of how the specific process is
characterized by Carrier, the transferred work is "fueling" and thus a significant portion of the Claimant': job duties.
Lastly, Organization charges that the disputed refueling work was
transferred from St. Louis, Missouri to various of Carrier's facilities at
Chicago, Illinois; Kansas City, Missouri; Little Rock, Arkansas; and Texarkana, Texas.
The Board has carefully read, studied and considered the complete
record in this case and finds that organization has failed to prove the
occurrence of a transfer of work or any other change in working conditions at
Carrier's St. Louis facility which is protected by Rule 12. Regardless of
whether the task in question was fueling or merely "topping off" as Carrier
argues, Organization, nonetheless, has failed to prove with a sufficient
quantum of probative evidence that the disputed work, in fact, was trans
ferred. Organization's
only evidence of such a transfer was embodied in one
letter between the parties wherein the General Chairman made an unsubstantiated allegation that the St. Louis fueling work is now performed in four (4)
other locations. Organization's proffering in this regard is nothing more
than mere speculation and does not prove a Rule 12 violation -- particularly
when measured against Carrier's plausible explanation that the St. Louis
fueling work was discontinued
because Carrier
introduced more efficient
locomotives with greater fuel capacity. For these reasons, therefore, it is
concluded that Organization has failed to prove the existence of a contractual
violation in this matter.