Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11273
SECOND DIVISION Docket No. 11047
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 violated the controlling
Agreement, in particular Rules 15, 26 and 100 when the Carrier contracted to
Dixie Concrete Inc. to unload twelve gondola carloads of crusher run gravel in
Waycross Shop during the latter part of March 1982.
2. That accordingly, the Seaboard System Railroad Company be ordered
to pay Carmen C. A. Varnadore and H. H. Lee eight hours pay at the rate of
time and one-half at the Carmen rate of pay.
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 March 20 and 21, 1982 the Carrier contracted Dixie Concrete to
unload 12 gondolas of gravel at the Carrier's Waycross Shop located in
Waycross, Georgia.
The Organization claimed violations of Rules 15, 26 and 100. The
organization claimed that by rule and by practice unloading inside the Shop
area has been Carmen's work. Crane work has been assigned to Carmen by
bulletin. The Organization admits that the crane being used by the contractor
was not on rails, however there was no mention of an emergency and the Carrier
could have waited for its proper equipment to free up. The Carrier had control over this situation. The Organization noted that in their correspondence
of record the Carrier's Director of Labor Relations states:
Form 1
Fo rm 2
Award No. 11273
Docket No. 11047
2-SSR-CM-'87
"Although Shop Superintendent Wood did have the
option of using the company crane to unload
these cars, there was certainly no compelling
obligation on his part to do so."
The Carrier stated the practice of Carmen operating cranes is limited
to on-rail cranes. The Carrier admitted that it does have control, but the
crane in question was being utilized on two shifts and overtime at the scrap
dock and therefore was not available. The Carrier stated the work was not
reserved to any class of employees, and the Carrier did not have the proper
equipment available. The Carrier argued the Organization must show exclusivity. There is no rule nor practice showing cranes are exclusive to the
Carmen's craft and, in any event, the Carrier noted the Organization did not
sustain the burden of proof in this matter.
Upon complete review of the evidence, the Board finds by the
Carrier's own admission this work has historically belonged to the Carmen's
craft. As stated by the Shop Superintendent, in the on-the-property handling,
which states in pertinent part:
"...Carmen have historically been used to unload
or load cars, if they are loaded or unloaded
with mechanically operated on-the-rails crane."
The question before the Board is, did the Carrier have the obligation to assign this work to the Claimants. The Board finds this utilization of equipment was within the control of the Carrier. The Board is not unsympathetic
to the Carrier's argument that the on-rail crane was needed elsewhere in the
facility, however, there was no showing in the record that any emergency
existed. Therefore, the on-rail crane could have been utilized to perform
this work when the equipment became free. Contrary to the Carrier's argument
that the Organization did not meet their burden of proof in this matter, the
Board finds that they have by both rule and by practice and by the admissions
of the Carrier's own executives. Therefore, the Claim will be sustained. The
Organization asks for 8 hours at time and one-half for the two Claimants. The
Board can find no precedent cited that would sustain the overtime payment, and
therefore the Claim will be sustained for 8 hours for each Claimant at the
straight time rate of pay.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
f
Nancy J. eyoE - Executive Secretary
Dated at Chicago, Illinois, this 10th day of June 1987.