Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11642
SECOND DIVISION Docket No. 11276-T
89-2-86-2-93
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Burlington Northern Railroad Company
STATEMENT OF CLAIM:
1. That the Burlington Northern Railroad violated the terms of the
controlling agreement, specifically Rules 27(a), 83 and 98(c), when they
assigned Carmen's class of work freight car repair to Maintenance of Way
employes.
2. That accordingly, the Burlington Northern Railroad be ordered to
compensate Rocky Mountain Seniority District Carman E. C. Wood eight (8) hours
at the punitive rate of time and one-half.
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 May 22, 1985, a claim was filed on behalf of Claimant who held
regular assignment at the Carrier's Laurel, Montana facility. The claim
alleged that two Maintenance of Way Employees were observed doing Carmen's
work on BN cars 965952 and 961463 on March 29, 1985. The work consisted in
"changing rollers and welding roller shafts on both cars." The claim stated
that the work should have been "performed by Carmen" in accordance with Rule
83. Relief requested was eight (8) hours at time and one half.
In response the Carrier's Chief Mechanical Officer denied the claim
on grounds that the work was historically performed "not only by Carmen, but
also by Machinists and ribbon rail plant employees (Maintenance of Way
Employees)."
Form 1
Page 2
part:
Award No. 11642
Docket No. 11276-T
89-2-86-2-93
When this claim was docketed before this Board the Brotherhood of
Maintenance of Way Employes was notified and did respond. This Organization
advised that it would not "make submission or other representation with
respect" to the claim.
The Rule cited by the Organization is the following, in pertinent
"Rule 83. Classification of Work
Carmen's work shall consist of:
(a) inspecting, building, repairing fabricating,
assembling, maintaining, dismantling for
repairs, upgrading of all cars and cabooses,
wrecking service at wrecks or derailments
subject to Rule 86;
(g) welding, fusing, brazing, soldering, tinning, leading, bonding, cutting, burning,
in connection with carmen's work by use of
such processes as oxyactetylene, electric,
thermit, hell-arc, tig and any other process;"
In subsequent handling of the claim on property the Organization submitted for
the record statements by Carmen with long tenure at the Laurel carshop who
stated, among other things, that they did work of the type for "the past
twenty years."
A review of the record shows that the Carrier never denies that the
disputed work was done by Carmen at Laurel. It simply holds that Carmen were
not the only craft who did this type of work.
With respect to prior practice the Board finds the evidence presented
by the Organization---which are statements by Carmen working at Laurel---to be
less than sufficiently probative to sustain a claim such as the instant one.
The statements say that Carmen have done this type of work; one statement adds
the sentiment that the Carman writing it feels like the work belongs only to
Carmen; another statement says that if others besides Carmen had done this
type of work in the past it was not with Carmen "knowledge or consent." The
record does not sufficiently support the evidentiary burden in this claim as
the Organization must do as moving party (Second Division Awards 5526, 6054;
Fourth Division Awards 3379, 3482; PLB 3696, Award 1). The evidence shows
that Carmen have often done this work; perhaps most of the time. But it does
not show that the work was not shared with others.
Form 1 Award No. 11642
Page 3 Docket No. 11276-T
89-2-86-2-93
The parties also address the question of whether rail rollers on
ribbon rail cars are integral to the cars or not, per application of Rule 83.
Both sides cite Awards and Dissents thereto dealing with issues such as auto
racks on cars, work related to dismantling freight cars for scrap, and so on
(See Second Division Awards 4515, 4598, 8542; and more recently, 11157,
11260). The Board need not rule on this issue absent sufficient evidence that
Carmen had not shared the specific work at bar with other crafts in the first
place.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ~ _
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of January 1989.
"0
LABOR R MEMBERS DISSENTING OPINION To
AWARD N0. 11642, DOCKET N0. 11276T
(Referee Edward Suntrup)
The Majority erred in their decision to deny the Employes claim,
in that they failed to properly consider the clear language of the Classification
Of Work Rule, but instead relied on the unsupported statement made by the
"Carrier's Chief Mechanical Officer" who had "denied the claim on grounds that
the work was historically performed "not only by Carmen,
brut
also by Machinists
and ribbon rail plant employees (Maintenance of Way Fhployeesf.."
The Employes, as pointed out in this Award, submitted three stat8oents
fray long term _Carmen employee that clearly show Carmen have done this work
exclusively for at least 20 years on this property.
The Majority erroneously states:
"With respect to prior practice
the
Hoard finds
the evidence presented by the Organization
which are statements by Carmen working at Laurel--to be less than sufficiently probative
to
sustain
a claim such as the instant one."
Such a statement flies in the face of other Hoard Awards that recognize
statements such as these
to
be evidence that would support this type of
claim. In 'third Division Award No. 26162, Referee George Rookie held that:
"The Organization has established a prima facie
case via the written statements of the three
long service employees that said work was
performed by employees is the Roadway Machine
Department, and these affirmations have not been
persuasively rebutted by Carrier."
LABOR MEMBERS DISSENTIM OPINtCN T0
AiMRD N0. 11642, DOCKET ND. 11276T
-
IWO
2 -
Also of Third Division Award~No. 27320, Referee John E. Cloney held:
"The four statements submitted by the Organization
are evidence that the disputed work was assigned
to Dispatchers fran the origin of the 7t'3MiS aryl CADS
program until April 13, 1984. Carrier did not
refute these statements on the property. While
Carrier does contend the language regarding "other
clerical duties as may be assigned" in the 1979
bulletin covers the work, it is clear that this
murk did not exist
in
1979 or in 1981 when Carrier
states the Clerk began doing it. Based on the _
statements of the employees me conclude the work
was assigned to Dispatchers when originated in
1983. We further conclude the work falls within
the meaning of the team "such work" as used in
the January 7, 1983, Agreement. Accordingly,
when so assigned, it became work of the Dispatcher
craft under teams of that Agreement."
and in Third Division Award No. 27185, Referee Eckehard Muessig held:
"The employees on the property furnished statements
asserting they have performed brush cutting. The
Carrier countered by labeling such statements as
self-serving, asserting again that the employees
had never performed this work exclusively, but did
not furnish any specifics as to
when and
where
others may have performed brush cutting in support
of an asserted past practice."
As in Award No. 27185, no where
in
the record on the property has
the Carrier submitted statements and/or provided any specific information
as to when or where other than Carmen have ever performed this work.
The Majority goes on to use Second Division Awards 5526, 6054;
Fourth Division Awards 3379, 3482; P.L.B. 3696, Award No. 1, none
of which have statements from Employes, that claim the work to be
exclusive to their Craft, unlike this case.
LABOR MSS DISSBJI'IW2 CPIrTICN TO
ACRD N0. 11642, DOCKET
Ice.
11278T
- 3 -
For these reasons Award No. 11642 is erroneous anti does not
serve as arty precedential value, and the Labor Members vigorously dissent:
-~ r1r .-"°`~_
R. A. M. Filipovic
D. A. Hampton
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