Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11386
SECOND DIVISION Docket No. 11149-T
2-B&O-CM-'87
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That the Baltimore: and Ohio Railroad Company violated the controlling agreement, and claimants contractual rights under that agreement,
when on the date of December 2;1, 1982 carrier abolished third shift car
inspector's position at East St. Louis, Illinois and commenced to assign
carmens' work to other classes of employes, in direct violation of Rule 144
1/2 of the controlling agreement.
2. That accordingly, Claimants J. Robbs, M. Haynes and C. Davis be
compensated two (2) hours and forty (40) minutes pay at the time and one-half
rate as per Employes' Exhibit "B", revised by Employes' Exhibit "R" as follows:
Claimant J. Robbs: April 5, 17, 26, 30, 1984,
May 3, 9, 21, 29, 1984, June 5,
12 and 27, 1984
Claimant M. Haynes: April 11, 22, 27, 30, 1984,
May 3, 14, 24, 30, 1984, June 6,
12, 1984
Claimant C. Davis: April 16, 24, 29, 1984, May 3,
15, 26, 31, 1984, June 6, 26, 1984
That carrier be ordered to re-establish the car inspector's position, third
shift, Cone Yard, East St. Louis, Illinois, claim continuing until resolved.
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.
Form 1
Page 2
Award No. 11386
Docket No. 11149-T
2-B&0-CM-'87
As third party in interest, the United Transportation Union was
advised of the pendency of this case, but chose not to intervene.
This dispute arises from the Claimants' contention that, commencing April 5, 1984, Carrier violated Rule 144 1/2 when B&0 or ICG Trainmen were
permitted to couple air hoses and test their own brakes at Cone Yard. The
Claim also seeks the reestablishment of the third shift car inspector's position at Cone Yard. This position had been abolished effective December 23,
1982 due to a decline in business.
The Organization maintains that after the third shift car inspector
position was abolished, Trainmen were permitted on numerous occasions to
couple hoses and test their own air brakes. In the Organization's view, this
was work exclusively reserved to the Carmen's craft, and therefore, violative
of Rule 144 1/2, which states as follows:
"(c) If as of July 1, 1974 a railroad had carmen
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
employes other than carmen perform such work
(and must restore the performance of such work
by carmen if discontinued in the interim) unless
there is not a sufficient amount of such work to
justify employing a carman."
The Organization further asserts that while the third shift car
inspector position may have been abolished in December of 1982 because of a
decline in business, it is clear that there was a subsequent increase and
improvement in business, and that sufficient work existed at the time the
instant Claim was filed to justify the reemployment of a car inspector. In
support thereof, the Organization points to the fact that Carrier returned a
yard engine and crew to the third shift, demonstrating that there was work
that could have been performed by a car inspector. Moreover, the Organization notes that Carrier reestablished the third trick Carman's position on
September 6, 1984 because there was sufficient work to justify reestablishing
that position.
Carrier argues that the work at issue has never been recognized as
accruing exclusively to the Carmen's craft, and in view of the fact that there
were no inspectors at East St. Louis at the time of the occurrences, the work
was properly performed by the train crews. We agree.
The work of making air tests and coupling air hoses has been the
subject of numerous decisions by this Board. It has been repeatedly held that
such work may be performed by other than Carmen and is not reserved exclu-
sively to the Carmen's craft.See Second Division Awards 11023, 11021, 10977,
Form 1 Award No. 11386
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10884, 10515, 10252, 10114, and 10021. Rule 144 1/2 was agreed to by the
parties after many jurisdictional disputes concerning the coupling of air
hoses and testing of air brakes, and reflects the fact that the performance of
that work is reserved to Carmen only under certain specified circumstances,
set forth as follows:
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. The train involved departs the departure yard or
terminal.
Clearly, all the criteria set forth in the Rule reserving to Carmen
the right to perform such work were not met in the conditions alleged in the
instant Claim, as there were no Carmen on duty on the dates claimed by the
Organization.
The Organization has argued, however, that Carrier should not be
permitted to circumvent the meaning and intention of Rule 144 1/2 by refusing
to reestablish a Cayman's position when sufficient work becomes available. We
agree with that proposition in theory. Pursuant to Rule 144 1/2, paragraph
(c), Carrier may not discontinue the performance of the disputed work by Carmen, unless there is not a sufficient amount of such work to justify employing
a Cayman.
From the record evidence before us, it is undisputed that the third
shift car inspector position was originally abolished because of a decline in
business. It is equally clear, however, that the Organization has failed to
sustain its burden of proving that sufficient work existed to justify the
assignment of a third shift car inspector during the period of the Claim. As
the moving party herein, it is incumbent upon the Organization to prove every
element of its case. See Second Division Awards 6369 and 6603. Here, the
Organization has claimed only a minimum call of two hours and forty minutes
for approximately thirty dates during the entire five month period of Claim.
It has not shown that sufficient work existed to justify the Cayman's position. The mere fact that Carrier subsequently reestablished the third trick
Cayman's position does not necessarily establish or prove that business had
reached a level four months earlier, at the time that the Claim was filed,
that would justify the reestablishment of the car inspector's position.
Similarly, the fact that Carrier returned a yard engine and crew to the third
shift does not show that sufficient work existed to justify the third trick
car inspector position. Accordingly, we must find that the Organization
failed to meet its burden of showing that a violation occurred on any of the
Claim dates.
Form 1 Award No. 11386
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A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
N' ancy -J er - Executive Secretary
Dated at Chicago, Illinois, this 18th day of November 1987.