Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11563
SECOND DIVISION Docket No. 11414-T
88-2-87-2-55
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Norfolk & Western Railway Company
STATEMENT OF CLAIM:
1. That the Norfolk & Western Railway Company violated Rule 103 of
the current Agreement and Article V of the September 25, 1964 Agreement and
Article VI of the December 4, 1975 Agreement when, beginning on December 14,
1985, trainmen were assigned to couple and install and remove ground air hoses
on trains in departure yard several cars from the head car in the track when
Carmen were on duty and available. Such work belongs to the Carmen Craft by
virtue of the above mentioned rule and agreements practiced at Williamson,
West Virginia for many, many years.
2. That because of such violation the Norfolk and Western Railway
Company be ordered to compensate Carman C. M. Trivette four (4) hours pay at
the pro rata rate of pay for the above mentioned date and such work be restored to Carmen by the Carrier reestablishing certain Carmen's positions at
Williamson, West Virginia.
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.
As Third Party in Interest, the United Transportation Union was
advised of the pendency of this dispute and did not file a Submission with the
Division.
Claim of the Organization that the work of removing ground air from
trains was performed by Trainmen in violation of various Rules, including Rule
103. The Organization points out that Carmen were on duty, that the trains
Form 1 Award No. 11563
Page 2 Docket No. 11414-T
88-2-87-2-55
tested were in the departure Transportation Yard and that they departed on
December 14, 1985, after Trainmen removed ground air. As evidence, the signatures of Carmen are submitted attesting to the fact that "removing all Ground
Air on all Trains..." is Carmen's work.
Carrier disputes the Claim on both procedural and substantive
grounds. On procedural grounds, it maintains that the Claim is based on an
occurrence which is nearly three years old. As such it is beyond the time
limits of the filing of a grievance. On substantive grounds, it argues that
it has historically been the practice on this property for Trainmen to remove
ground air from trains in the Transportation Yard.
This Board has carefully reviewed the record in this case. It finds
no procedural violation as the Claim was filed within sixty days of the alleged violation. On the merits, the Board finds sufficient probative evidence
to substantiate that the Carrier has violated the Agreement. It is not disputed that Carmen were on duty, and that the trains in dispute were tested and
departed a departure yard. The Board does not find a direct rebuttal by the
Carrier of the signed statement by Carmen that the removal of ground air has
always been Carmen's work. Evidence in the record as argued by the Carrier to
dispute this point is not compelling.
On the whole of this record, the evidence clearly indicates that the
disputed work belongs to Carmen. While this Board finds it difficult to identify Agreement violations and then deny compensation, it must do so here under
the principle of the _de minimum doctrine and the circumstances at bar. The
record on property indicates that the removal of ground air was done to two -
trains. It was not rebutted by the Organization that the work herein disputed
"takes less than three (3) minutes to perform." Consequently, it is not appro
priate for this Board to order compensation for four (4) hours pay. Nor is it
within the Boards jurisdiction to order the reestablishment of positions.
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 31st day of August 1988.