Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11691
SECOND DIVISION Docket No. 11453-T
89-2-87-2-101
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM:
1. That the Norfolk & Western Railway Company violated Rules 30 and
110 of the current Agreement and Article V of the 1964 Agreement, VI of the
December 4, 1975 Agreement, when trainmen, train crews and yard crews were
assigned between March 16, 1986 and April 30, 1986 to inspect trains, test
brakes and yard crews were assigned to make air hose couplings in Elmore
Terminal.
2. That because of such violation, the Norfolk & Western Railway
Company be ordered to compensate certain employes whose names are maintained
on the overtime board at Elmore in the amount of 393 eight hour days or shifts
at the time and one-half rate of pay for the dates specified in the initial
claim between March 16, 1986 and April 30, 1986 and such pay be allowed and
divided equally between the following Carmen: R. M. Lawrence, R. G. Hall,
C. W. McKinney, D. F. Jones, W. E. Ford, J. E. Miller, E. W. Dehart, J. A.
Taylor, C. J. Bickford, A. F. Taylor, E. J. Clark, J. W. White, and M. F.
Mills, whose names are maintained on the extra or overtime board at Elmore.
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 filed a response with the
Division.
Form 1
Page 2
Award No. 11691
Docket No. 11453-T
89-2-87-2-101
This claim originates from Elmore, West Virginia, a yard on the
Princeton-Deepwater District of the Carrier's Pocahontas Division where a shop
and system of tracks is maintained for car and train inspection. There are
approximately twenty (20) active mines, or branch lines along the Pocahontas
Division generating loaded coal hoppers for trains that operate through Elmore
for east and westbound movements.
On September 7, 1984, the Carrier posted bulletin board notice that
eastward coal trains would be built at the mine site for movement in run-through service to distant destinations--such as Norfolk, VA--via Elmore, WV,
and Roanoke and Crewe, VA. These run-through trains would require no intermediate service at these locations, including Elmore, WV. Therefore, conductors were advised to insure that the pre-departure inspection of these
trains (A-6 air brake test
and inspection)
on line of road was continued.
Based on this notice, the Employes filed the instant claim, charging
that the directive took work away from Carmen who had previously done all of
the inspecting, testing, and air hose coupling under both the Rules and past
practice. They maintain that the Carrier has violated that section of Rule
No. 110 which-reads:
"Carmen's work shall consist of building, maintaining, painting, upholstering and inspecting
all passenger and freight cars,
...
and
inspection work in connection with air brake
equipment on freight cars; .., and all other
work generally recognized as carmen's work."
along with that part of Rule No. 30-A which reads:
"None but mechanics or apprentices regularly
employed as such shall do mechanics' work, .
They further submit that the Carrier is also in violation of Article
V of the September 25, 1964, Agreement, which states, in part:
"In yards or terminal 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 terminal
from which trains depart, such inspecting and
testing of air brakes and appurtenances on
trains as is required by the carrier in the
departure 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."
and, the part of Article VI of the December 4, 1975, Agreement which reads:
Form 1 Award No. 11691
Page 3 Docket No. 11453-T
89-2-87-2-101
"If as of July 1, 1974, a railroad had a 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
employees other than carmen perform such work
... .
"If as of December 1, 1975, a railroad has a
regular practice...it may not discontinue use of
a carman or carmen...".
However, the Carrier disagrees, maintaining, instead, that:
"...The making of pre-departure train inspections and initial terminal brake tests on line
of road has normally been the work of conductors
and trainmen of the Carrier at many locations
and, as such, constitutes an established past
practice."
The Carrier also states:
"It is beyond all reason to say that Carmen have
the exclusive right to perform such inspections
and brake test. A host of NRAB and PLB decisions have denied such claims."
It further charges that Award No. 19, adjudicated before Public Law
Board 3900 and, subsequently, denied on December 10, 1986, was intended to
finally resolve a number of identical claims, the instant claim being one of
these.
In Award 19, the Employes had made the following charges:
"1. That the Norfolk and Western Railway
Company violated Rule Nos. 30 and 110 of the
Current Agreement and Article V of the September
25, 1964 Agreement and Article VI of the
December 4, 1975 Agreement, when Trainmen were
assigned between the dates of September 11,
through October 17, 1984 to inspect trains and
test brakes.
2. That because of such violation, the Norfolk
and Western Railway Company be ordered to compensate the named claimants which appear on the
overtime list at Elmore, WV, thirty-six (36)
eight (8) hour days at the time and one-half
rate to be divided equally."
Form 1
Page 4
Award No. 11691
Docket No. 11453-T
89-2-87-2-101
However, the Carrier had cited 47 Fed. Reg. 36,792 (1982), which
states in pertinent part:
"...FRA has not adopted language designating a
single craft as qualified to make the inspections in every circumstance and location.
Rather FRA concludes that the basic requirement
for ensuring safety is that the person performing the initial terminal test and inspection
must be a qualified employee, possessing the
knowledge and ability to inspect the train air
brake system for compliance with the regulations."
In Award 19, the Board stated in its Findings that:
"...the Organization has failed to meet its
burden of proof that air brake tests and train
inspections at the mine sites are the exclusive
work of the carmen craft. Indeed, Carrier's
position is undisputed that train crews perform
such tests and inspections at similar locations
where freight cars are added to a train on line
of road. There is no evidence to contradict
Carrier's contentions that train crews are
qualified to perform the federally mandated
inspections and tests at the mine sites,...".
"The Board finds that the claim presented must
be denied...".
It is clear that Award 19 addresses issues substantially similar in
form and substance to the instant claim. And, although it must be noted that
Award 19 was intended to be restricted in its application to its specific
facts--and is in no way to be considered as precluding or predetermining other
claims--its fact pattern is sufficiently alike that of the present case that
this Board concurs that its findings must control and have application in the
instant claim.
A W A R D
Claim denied.
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of March 1989.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
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