Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11694
SECOND DIVISION Docket No. 11459-T
89-3-87-2-116
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:
(St. Louis Southwestern Railway Company

STATEMENT OF CLAIM:

1. That the St. Louis Southwestern Railway Company violated the controlling agreement and the Railway Labor Act, as amended, when other than carmen (switchmen) were instructed and permitted to couple air hoses between cars in outbound train ESHOT, with engine 7756 and caboose SP 4005, located in track 4, Pine Bluff, Arkansas, which is a terminal and departure yard.

2. That the St. Louis Southwestern Railway Company be required to compensate Carman B. J. Carter in the amount of four (4) hours pay at the proper pro rata rate for the date of January 26, 1986.

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, but chose not to intervene.

On January 9, 1986, the following incident occurred at the Carrier's Pine Bluff, Arkansas, train yard:

"...train ESHOT, with engine 7756 and cab SP 4005, located in track 4, was called at 10:50 a.m. and departed at 12:05 a.m. This train had bad order SP 698216 thrown out. Switchman was instructed by Charles Alexander to make air joint between ACFX 78531 and HPLX 405452 at 9:53 a.m. This was not a double over nor a movement within the yard."

Form 1 Award No. 11694
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89-2-87-2-116

The Organization argued that the making of air joints is work '00

reserved exclusively to Carmen, and that this order was a violation of Article
V, Addendum 2, of the September 25, 1964, Agreement. It filed a claim with
the Carrier on February 14, 1986. The Carrier denied the claim, advising the
Organization that:

"...The Carmen on duty were inspecting DAASM and were not available to make air hose couplings on above mentioned cars."

The claim was appealed to Labor Relations, who also denied it, advising the
Organization that:
"The coupling of air hoses referred to in this
claim resulted from a switching movement and is
not a violation of Addendum No. 2, Article V, of
the current agreement."
In the Carrier's Submission in the instant case, it called the
Board's attention to what it claimed was a move by the Organization to amend
its initial claim. The original claim, dated February 14, 1986, read:
"On January 26, 1986, train ESHOT, with engine
7756 and cab SP 4005, located in track 4, was
called at 10:50 a.m. and departed at 12:05 a.m.
This train had bad order SP 698216 thrown out. low
Switchman was instructed by Charles Alexander to
make air joint between ACFX 78531 and HPLX
405452 at 9:35 a.m. This was not a double over
nor a movement within the yard."

However, the claim submitted to this Board, dated August 11, 1987, stated:

"That the St. Louis Southwestern Railway Company violated the controlling agreement and the Railway Labor Act, as amended, when other than carmen (switchmen) were instructed and permitted to couple air hoses between cars in outbound train ESHOT with engine 7756 and caboose SP 4005, located in track 4, Pine Bluff, Arkansas, which is a terminal and departure yard."

According to the Carrier, the Organization at no time alleged in its original
complaint on the property that ESHOT was an outbound train, nor identified
track 4 as being in the Pine Bluff, Arkansas, yard and the terminal where
track 4 was located as being a terminal and departure yard.
As to the procedural issues raised by the Carrier in the instant
case, the Board notes that any argument that the Organization wished to
present on behalf of its position must have been raised in the local handling
of the claim between the parties on the property. It is impermissible to now
submit new arguments or evidence to this Board. This ruling arises from ._fir
Circular 1, which reads in pertinent part:
Form 1 Page 3

Award No. 11694
Docket No. 11459-T
89-2-87-2-116

"No petition shall be considered by any division of the Board unless the subject matter has been handled in accordance with the provisions of the Railway Labor Act, approved June 21, 1934."

It was also illustrated in Third Division Award 24977, which read:

"...It is new argument and barred from our consideration, pursuant to the requirements of Circular No. 1. As new argument we are precluded by our rules from judicially considering arguments that were not first raised on the property, and their averments regarding the timeliness of the unjust hearing are inadmissible now."

This claim, therefore, must be limited to only those issues that were originally heard on the property.

In respect to the substantive issues raised in the instant claim, Article V, Addendum 2, which was cited in this case, reads in pertinent part:

"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 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."

However, in respect to the interpretation of this Article, the Board in Second Division Award 5368 held:

"There is nothing ambiguous in the language of Article V; the interpretation is entirely dependent upon the factual situation involved in each independent dispute."

In Second Division Award 10844, the Board spoke to the factual situation in that claim, and also cited Rule 144 1/2:
Form 1 Award No. 11694
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89-2-87-2-116

"...The Board has held on numerous occasions that under Rule 144 1/2 (or similarly worded provisions) three criteria must be met to sustain the kind of claim made by the Organization, namely: 1) the Cayman in the employ of the Carrier is on duty, 2) the train was tested, inspected and/or coupled in a train yard or terminal, and 3) the train involved departs a yard or terminal ...The Board has further held on numerous occasions that the making of air tests is work that is incidental to the duties of train crews handling their trains and not exclusively the work of Carmen ...Here, it is

undisputed that at the time at issue, the Cayman

was not on duty. The three criteria required

under Rule 144 1/2 therefore cannot be met.

Coupled with the fact that the testing work is

not exclusively the Carmen's, the Claim must be

denied..."

Similarly, Second Division Award 10889 also found:

" ...The Board essentially agrees with the Organization that the three key points normally required to sustain a claim, such as here, were met: 1) Carmen were on duty, 2) the train was tested, inspected or coupled in a departure yard or terminal, and 3) the train involved left the departure yard or terminal. That is what occurred here and the Carmen properly performed their required work prior to the time that the train pulled to another track to set out the bad order cars...The issue before the Board is whether the making of the air test (after the train was pulled out to set out the bad order cars) is exclusively the work of Carmen, even if such test is solely to determine if the brakes have applied to the wheels of cars. The preponderance of Awards interpreting Article V have found that, under these or similar circumstances, such work, as here disputed, may be performed by Train Crews as an incidental part of their duties. We so find here."

Based on the evidence before it, this Board concurs with the preponderance of awards that interpret Article V to mean that such work as disputed in the instant claim may be performed by train crews as an incidental part of their duties.
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89-2-87-2-116

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest: l K z~-,0'0- "00001

Nancy J ver - Executive Secretary

Dated at Chicago, Illinois, this 22nd day of March 1989.'