Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago and North Western Transportation Company
1. Carmen B. L. Cole, C. Brownell, J. Sharpe, B. Johnson, D.
Monaghan, A. Shank, M. Frommelt, P. Haworty (sic), A. Kitchen, S. Keahna, J.
Comer, Jr. and J. Grice were deprived of work and wages to which entitled when
the Chicago and North Western Transportation Company violated the controlling
agreement when it improperly assigned train crews to perform Carmen's work of
coupling air hoses and making terminal air brake test on March 2, 3, 4, 8, 9,
10, 15 and 16, 1984.
2. That the Chicago and North Western Transportation Company be
ordered to compensate Carmen Claimants as follows:
Award No. 11295
Docket No. 11085-T
2-C&NW-CM-'87
B. L. Cole
D. Monaghan
A. Shank
M. Frommelt
S. Keahna
J. Grice
March 2, 1984
March 8, 1984
March 9, 1984
March 9, 1984
March 10, 1984
March 15, 1984
Claim is made for eight (8) hours at the time
and one-half rate of pay for the above listed
dates.
C. Brownell
J. Sharpe
B. Johnson
P. Haworth
A. Kitchen
March 3, 1984
March 4, 1984
March 8, 1984
March 9, 1984
March 10, 1984
J. Comer, Jr. March 10, 1984
Claim is made for two (2) hours and forty (40)
minutes at the time and one-half rate of pay
for the above listed dates.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
Form 1 Award No. 11295
Page 2 Docket No. 11085-T
2-C&NW-CM-87'
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 United Transportation Union was
advised of the pendency of this case, but chose not to intervene in the
dispute.
The Carrier operates three (3) freight yards in the Des Moines, Iowa
Terminal, namely, at Hull Avenue, Bell Avenue and Short Line Yard. The
dispute arises over the Organization's Claim that on March 2, 3, 4, 8, 9, 10,
15 and 16, 1984 the Carrier improperly assigned the train crews and switch
crews to perform Carmens work of coupling air hose and performing air brake
test. The Organization contends that the Claimants all of whom are Carmen,
were available to work on all of the shifts on the above mentioned dates.
According to the Organization, the improper assignment of Carmen's work by the
Carrier violated Rules 14, 15, 30, 57, 58, 61 and 76, Article V of the September 1964 Agreement and Article VI, Sections c, d, e, and f of the Mediation
Agreement, Case A, 9698 revising Article V of the September 1964 Agreement.
Moreover, the Organization claims that historically, the work in dispute has
been performed by Carmen.
Before considering the merits of the instant dispute, a threshold matter which has been raised by the Organization must first be addressed. The
Organization asserts that it has "submitted statements that are supportive of
our Claim, none of which have been refuted by the Carrier;" therefore, they
"must stand as fact." The record does not support the Claim by the Organization. On the property, the Carrier's position was as follows: a) Section V
of the 1966 Agreement provides that "[A]t points where Carmen are not regularly assigned, train crews are permitted to couple air and make initial terminal
air test;" b) the work which is the subject of the Claim by the Organization
"has historically been performed at Hull Avenue * * by Trainmen;" and c) "the
facts in this case" indicate that the "claim does not have merit." Accordingly, it is denied for lack of support of schedule rules as to agreements. See
June 10, 1984 letter by J. H. Koch, Assistant Vice President and Division
Manager, and September 25, 1984 letter by Ann L. Reif, Labor Relations Officer
(Exhibits B and E of Organizations's submission).
The Carrier's position on the property demonstrates that, it has
refuted the Organization's claims although it has not done so, supported by
factual data. Thus, the central query to be addressed is whether the Organization has satisfied its burden of proving that the Carrier has violated the
Agreements between the parties. In the opinion of the Board, the Organization
has failed to do so.
Form 1
Page 3
Award No. 11295
Docket No. 11085-T
2-C&NW-CM-87'
The issues raised in the instant dispute, primarily focus on Article
V, Paragraphs (a) and (b) of the 1964 Agreement and Article VI, Paragraph (c)
of the 1975 Agreement, which provide as follows:
"Article V - Coupling, Inspection and Testing
(a) In yards or terminals where Carmen in the
service of the carrier operating or servicing
the train are employed and are on duty in the
departure yard, coach yard or passenger termi
nal from which trains depart, such inspecting
and testing of air brakes and appurtenances on
trains as required by the Carrier in the de
parture yard, coach yard or passenger terminal,
and the related coupling of air, signal and
steam hose incidental to such inspection, shall
be performed by the carmen.
(b) This rule shall not apply to coupling of
air hose between locomotive and the first car
of an outbound train; between the caboose and
the last car of an outbound train or between
the last car in a "double-over' and the first
car standing in the track upon which the out
bound train is made up." * * *
"Article VI - (December 4, 1975 Agreement)
(c) If as of July_ 1974, a railroad had carman
assigned to a shift: at a departure yard, coach
yard or passenger terminal from which trains
depart, who performed the work set forth in this
rule, it may not discontinue the performance of
such work by carmen on that shift and have em
ployees other than carman perform such work (and
must restore the performance of such work by Car
men if discontinued in the interim), unless there
is not a sufficient: amount of such work to justify
employing a carman."
The issues raised in the instant dispute have been addressed in previous Awards. In Second Division Award No. 10107 this Board enumerated the
criteria which must be satisfied in order to sustain the Organization's Claim
by stating the following:
"The language of the 1964 and 1976 Agreements has
been the subject of many previous awards which
determined whether or not carmen were entitled to
perform the type of work under consideration here.
Form 1 Award No. 11295
Page 4 Docket No. 11085-T
2-C&NW-CM-87'
Accepted as three criteria supporting Carmen's
claims are the following: -
1. Carmen in the employment of the Carrier are on duty.
2. The train tested, inspected or coupled is in a departure yard or terminal.
3. That the train involved departs the departure yard
or terminal." See for example Second Division Awards
Nos. 11033, 10679, 9932 and 6671.
The record before this Board warrants the conclusion that the cars in
question were intra-yard movements or transfers rather than trains departing
the departure yard or terminal. Accordingly, the third criterion, namely,
that the train involved depart the departure yard or terminal, has not been
satisfied. Since the requirements of the third criterion have not been met by
the Organization, there is no need to determine whether the other criteria
have been satified. See, for example, Second Division Award No. 10107.
In the alternative, assuming that the work in question was reserved
to Carmen, the Organization failed to satisfy the requirements of Article VI,
Paragraph (f) of the Agreement. Article VI, Paragraph (f) provides a mechanism
by which disputes over whether or not there is "sufficient work" to justify
the employment of a carman can be resolved. In order to invoke the agreed
upon procedure in Paragraph (f), the General Chairman of Carmen is required to
request the parties "to undertake a joint check of the work done." It is
enough to state that there is nothing in the record to indicate that the
General Chairman submitted such a request. See, for example, Second Division
Awards Nos. 10242 and 11023.
The parties have submitted numerous Awards in support of their respective positions all of which have been carefully examined. However, decision
is a function of the Interpretation of the relevant provisions of the Agreement as they apply to the particular facts. Clearly, the Organization has
failed to satisfy the burden of proving that the Carrier has violated the
Agreement between the parties. As a result, the Claim is denied.
A W A R D
Claim denied.
Form 1 Award No. 11295
Page 5 Docket No. 11085-T
2-C&NW-CM-87'
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
Nancy J. e r - Executive Secretary
Dated at Chicago, Illinois this 15th day of July 1987.
vo
hhti0k a1F:MBERS' DISSENT TO AWARDS
11295 THROUGH 11305
SECOND DIVISION DOCKET NOS. 11085T, 11095T,
11096T, 11097T, 11098T, 11099T, 11100T, 1110
11102T, 11104T and
11105T
( REFEREE H~ MAN COHEN)
The Majority grossly erred in their erroneous
Decisions resulting in these Awards when they failed to
recognize the full Agreement in effect on this property.
While they recognized and quoted Paragraphs (a) and
(b) of the
1964
Agreement and Paragraph (c) of the 1975
Agreement they failed to read obviously, Paragraphs (d) and
(e) of the same 197~ Agreement which as quoted below
recognize that in some cases, such as this case, there
may not be a Cayman on duty in a particular yard, but may
be on duty in another yard, within the same terminal, the
Carrier cannot discontinue the use of Carmen at that location:
"Article VI December 4, 1975"
Paragraph (d) and (e)
This Board has,, by Awards to
identical incidents,, held that if
same terminal which may have more
this case, the necessary criteria
Carmen are on duty, they stated:
in Award 9932
Dockets involving
Carmen are employed in the
than one yard, such as in
is considered met, that
Labor Members' Dissent to Awards
Nos. 11295 THROUGH 11305
- 2 -
"What is at issue here are factual considerations,
disputed between the Carrier and the Organization,
as to whether the established criteria were met.
There is no question that Carmen are on duty and
available in the Louisville Terminal. The Carrier
states that at the East Louisville Yard there are no
Carmen assigned. However, the Organization has
shown to the Board's satisfaction that the East
Louisville Yard is within the yard limits of the
Louisville Terminal. The Organization's statement
that Carmen are called for duty on occasion to the
East Louisville Yard was not disputed."
The Majority further erroneously found that
"The record before this Board warrants the
conclusion that the cars in question were intrayard movements or transfers rather than trains
departing the departure yard or terminal."
The Majority had been provided with precedent Awards
10679 and 11203 on this same issue and completely ignored
their value, there had been no argument made, on the property,
that the three criteria had not been met, nor was there any
question raised as to the need for a "joint check."
Labor Members' Dissent to Awards
Nos. 11295 THROUGH 11305
- 3 -
The employes were: not seeking the establishment
of a position in this case, they were only seeking to
maintain the work in accordance with the Agreements, both
parties were aware of the amount of work, so there was no
need for a joint check.
Because these decisions are so erroneous the
Employes vigorously dissent.
R. A~Johnson
.
M. J . Cu
11
en
,,~, a,
A,-4
a k Filipov/c
err'
low
CA~RIER MEMBER-'
° t1\S,vL?
TO
L.=_= OP :-!:~"3~?.S ` D.'_SS~`:T
TI-:e C:gan'_~atioa's Dissent restates the same trite nonsense
that has beer
uniform'-
-ound unpersuasive before this Board.
The Organisation states that they are citing "Paragraphs (d)
and (e) of .::a
sG:-,C
19~; a_ree:;e,^.,. w:,ich as cu`tsd below..." and than
do not do so.
However, on the property the Organization had argued that the
yard had been "shut down" and one must find that there was not sufficient
carman work to justify "employing a carman" under Paragraphs (d) and (e).
':ven if it could be found that some "Carmen were on duty..."
Award 112» pointed out:
"The record before this Board warrants the conclusion that
the cars in question were intra-yard movements or transfers
rather than trains departing the departure yard or terminal.
Accordingly, the third criterion .... has not been satisfied".
Dissenters cite the foregoing as being an erroneous finding, but
do not attempt to explain why, on this record, that conclusion is in error.
Finally, as we did in our Answer to the Dissent filed in Awards
11208-11211, we refer to Second Division Award 6177 which expressed " ....its
bewilderment that the issues presented herein are before the Board for still
another Award."
CARRIER `tE:.!BERc'
y:S;.;rR
T;~
LABOR MEMBERS' DISSENT TO
- _ - A:yyRD NOS.
ll-'9-13
T'-' l--,-'3
P. V. Varga
AV4"~"