Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11221
SECOND DIVISION Docket No. 11189-T
2-SSR-CM-187
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(Brotherhood Railway Carmen of the United States
( and 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 13,
1984 _ a Machinist was assigned to perform work which belonged to Carmen
(engine carpenters) by repairing the cab door latch on locomotive SBD 5003.
2. And accordingly, the Carrier should he ordered to compensate
Cayman 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 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.
The International Association of Machinists and Aerospace Workers
have filed a Third Party response to this Claim.
On November 23, 1984 a Machinist was required to repair a door latch
on a locomotive. The work took place in the roundhouse at the Carrier's
Howell Shops next to the Car Shop where Carmen were employed and on duty.
The Organization argued this assignment of Cayman's work to the
Machinists' craft was in violation of Rule 104, which states in pertinent part:
From 1 Award No. 11221
Page 2 Docket No. 11189-T
2-SSR-CM-'87
"...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 points, 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 Carmen's craft was given to another craft and cites two
Awards in support of their position.
The Carrier argued Rule 104 dues nut specifically give the work in
question to the Car-men'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
Carmen's craft. The Rules cited du 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 specifically claimed this
particular work (the Machinist's Third Party response neither claimed nor
disclaimed this work) and the work was performed on a systemwide basis by the
Carmen'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 systernwide test has been met. The work in question was improperly assigned to the
Machinist'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 were Carmen on duty 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.
From 1 Award No. 11221
Page 3 Docket No. 11189-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:
ancy J. er - Execurive Secretary
Dated at Chicago, Illinois, this 11th day of March 1987.
vio
'No
CARRIER MEMBERS' DISSENT
TO
AWARD 11221, DOCKET 11189-T
e eree Raymond . c 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 screw was drilled out and a new door 1 atch
affixed to an Engine Cab Door 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 reserved to the Carman Craft.
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, defy common sense, and that would totally mystify a reasonably
prudent individual who would review the case, 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, and
2. The Craft representing the employe who did this work declined to
participate as a Third Party.
The classification of work. rule relied upon by petitiner does not of
and by itself, reserve this work for them to the exclusion of all others,
nor is it evident that the majority has so found, otherwise there would be
CMs' Dissent to Award 11221
Page 2
no necessity for the majority to hold that "...the work was performed on a
systemwide basis by the Carmen's craft on the Louisville and Nashville
Railroad .. ." Repeated assertions are no substitute for evidence and do
not satisfy the burden of proof prerequisite of the petitioning party.
Nor can there be any significance attached to the fact that the Third
Party in this dispute, the Machinists 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 Machinists 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.
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 petitioner in this dispute has not, under any circumstances,
satisfied their obligation "...to prove the essential elements of their
claim..." They have not furnished one scintilla of evidence that they have
performed this work, to the exclusion of all others, at any or all of the
ten cites on the Louisville and Nashville Railroad.
We vigorously dissent.
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