Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11220
SECOND DIVISION Docket No. 11188-T
2-SSR-CM-'87
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(Brotherl^ood Railway Carmen of the United States
( anti Canada
Parties to Dispute:
(Seaboard System Railroad
Dispute: Claim of Employes:
1. That the Seaboard System Railroad Company, hereinafter referred to as
the Carrier, violated the controlling Agreement, when on November 9, 1984, a
sheetmetal worker (pipefitter) was assigned to repair a cab door latch on locomotive No. 5138 at Evansvile, Indiana Howell Shops.
2. And accordingly, the Carrier should he ordered to compensate Carmen,
N. V. Hicks, hereinafter referred to as the Claimant, for two (2) hours and
forty (40) minutes pay at overtime rate as the result of said violation.
FINDINGS:
The Second Division cf the Adjustment Board, upon the whole record
and all the evidence, finds tl-.at:
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.
As third party in interest, the Sheet Metal Workers International
Association was advised of the pendancy of this case, but chose nut to file a
Submission with the Division.
On November 9, 1984, a Carman was required to repair two door latches
on a locomotive. The Cayman repaired the first latch but needed a welding
machine for the second latch. The locomotive was sent to the roundhouse and a
Sheetmetal Worker performed the work.
The Organization argued this assignment of Cayman's work to the Sheetmetal Worker's craft was in violation of Rule 104, which states in pertinent
part:
Form 1 Award No. 11220
Page 2 Docket No. 11188-T
2-SSR-CM-187
' oxyacetylene, thermit and electric welding on work '
generally recognized as carman's work; and all other
work generally recognized as carman's work."
The Organization also claimed a violation of Rule 30, Section A:
"30(a) None but mechanics and apprentices regularly employed as such shall do mechanics' work as per special
rules of each craft, except foremen at outlying points,
as listed below. Where there is not sufficient work to
justify a mechanic of each craft, the mechanic, mechanics
or foremen employed at such point, so far as capable, may
- perform the work of any craft that may be necessary."
The Organization claimed this is not a de minimis matter in that work
belonging to the Cayman's .:raft was given to another craft and cites two
Awards in support of their position.
The Carrier argued Rule 104 does not specifically give the work in
question to the Cayman's craft, and because of this, the Organization must
therefore prove that the work has exclusively and historically been recognized
as Carmen's work. It is the Organization that bears the burden to prove the
essential elements of their Claim.
Upon complete review of the evidence, the Board finds that the work
in question was not performed on the Seaboard System exclusively by the Carman's craft. The Rules cited do not specifically give the work in question to
the Carmen's craft. However, this particular location was formerly part of
the Louisville and Nashville Railroad System, and both parties stated in their
submissions the working rules between the former Louisville and Nashville Employees and the Carrier have continued to the present. It seems clear from a
reading of this Docket that no other craft has claimed this particular work
and the work was performed on a systemwide basis by the Cayman's craft on the
Louisville and Nashville Railroad. The Board has required systemwide exclusivity in cases such as this. The question before the Board is what constitutes a system? The work rules and controlling Agreements from the Louisville
and Nashville are still in effect. The "system" has not been redefined to
include the Seaboard System. The systemwide test has been met. The work in
question was improperly assigned to the Sheetmetal Worker's craft. With respect to the monetary amount of the Claim, it seems to the Board to be excessive under the circumstances. Certainly, the Carrier should understand that
work belonging to a craft should be assigned to the craft, but there was a Cayman on duty who repaired the first latch and this work would not have involved
a call-out. The Board finds that compensation in the amount of one hour's pay
at straight time is sufficient in this case.
Form 1 Award No. 11220
Page 3 Docket No. 11188-T
2-SSR-CM-'87
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J ~er - Executive Secretary
Dated at Chicago, Illinois this 11th day of March 1987.
lqwl~
CARRIER MEMBERS' DISSENT
TO
AWARD 11220, DOCKET 11188-T
(Referee Raymond E. McA pin)
The decision propounded in this Award is an opinion based upon such
faulty reasoning that it begs to be labelled sophistry.
I n this dispute, a broken Engine Cab Door 1 atch was welded by an
employe within the scope of an agreement other than petitioner's.
The Carrier logically defended its action on the following facts:
1. The rule relied upon is silent as to whom Carrier must assign to
effect these repairs, and
2. The work has not been recognized as Carmen-Engine Carpenter work.
The Majority correctly reiterated a consistently stated principle of
this Board that "...It is the Organization that bears the burden to prove
the essential elements of their Claim..." Then, for reasons that defy
logic and common sense, it was found that "...the work was performed on a
system wide basis by the Carman's craft on the Louisville and Nashville
Railroad ....The system wide test has been met..."
What the Majority found in this Award that would lead them to find that
"...The system wide test has been met..." only they can answer but the only
conclusion that the Dissentors can draw is that it was so found because:
1. The Organization repeatedly asserted that this was their work
2. The Craft representing the employe who did this work declined to
participate as a Third Party
3. Some eleven employees signed a prepared petition that read:
CMs' Dissent to Award 11220
Page 2
"We the undersigned do hereby attest that Carmen here
at Howell have been regularly assigned to repair locomotive
cabs, including such work as repairs to cab door latches."
The Louisville and Nashville Railroad consists of some 6,000 miles of
track, with some 10 points where engines are serviced and repairs affected
as needed. The Petition merely states that "Carmen here at Howell have been
regularly assigned to repair locomotive cabs...", not that they have done so
to the exclusion of all others, nor is there one single solitary shred of
evidence that Carmen have been, to the exclusion of all others, assigned to
repair locomotive cabs at any of the other points on the Louisville &
Nashville Railroad. This petition does not satisfy the Organization's
necessity "...to prove the essential elements of their claim..." and clearly
would lead no reasonably prudent individual to the conclusion that "...the
work was performed on a systemwide basis by the Carman's craft on the
Louisville and Nashville Railroad..." on that evidence.
Nor can there be any significance attached to the fact that the Third
Party in this dispute, the Sheet Metal Workers, declined to enter this
dispute. The only meaningful conclusion that can be drawn from a lack of a
Third Party response is that this is not Sheet Metal Workers' work
exclusively. Further, it is this Board's responsibility to give full
consideration to the Third Party's contractual rights. It should not be
assumed that silence is a tacit admission that the work is exclusive to
Carmen, yet, apparently, that latter conclusion was reached by the majority
in this matter.
CMs' Dissent to Award 11220
Page 3
Repeated assertions are no substitute for evidence and do not satisfy
the burden of proof prerequisite of the petitioning party.
We vigorously dissent.
~_
4~
4
R. L. Hicks'
41
d.0 -
low