Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11777
SECOND DIVISION Docket No. 11582
89-2-88-2-68
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen/ A Division of TCU
PARTIES TO DISPUTE:
(The Louisville and Nashville Railroad Company (CSX)
STATEMENT OF CLAIM:
1. That the Louisville and Nashville Railroad Company hereinafter
referred to as the Carrier, was in violation of the Agreement when on January
19, 1987 they called and used a foreman as a wrecking crew member.
2. And accordingly, the Carrier should be ordered to additionally
compensate Cayman H. 0. Zinsmeister hereinafter referred to as the Claimant,
for sixty-nine (69) hours at the rate of time and one-half as the result of
said violation.
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.
It is the position of the Organization that Carrier violated Rule
19(e) when they utilized Mr. Connell from the miscellaneous overtime board to
fill a wrecking crew position. The Organization aruges that at 7 A.M. on
January 18, 1987, Mr. Connell began work as a Foreman which under established
pay and working conditions is a twenty-four (24) hour day. On January 19,
1987, at 2:30 A.M., Mr. Connell was improperly called to accompany the wrecker. As Claimant was the next available man on the overtime board, the Agreement was violated when Foreman Connell was called in place of the Claimant.
The Carrier denies that Mr. Connell works as a Foreman. Carrier
argues that he is paid as a Cayman and that the Supervision comes under the
departure yard Foreman. Since Mr. Connell was not working as a Supervisor on
January 18, 1987, he was properly called to accompany the wrecker.
Form 1 Award No. 11777
Page 2 Docket No. 11582
89-2-88-2-68,
This Board must take special note of the fact that the Carrier has
failed on the property to rebut most of the Organization's assertions or raise
any issues with the stated Agreement provisions.
The Organization argues a violation of Rule 19(e) which states:
"Should an employee be assigned temporarily to fill
the place of a foreman, the established rate for
the position, and the rules and working conditions
that are attached thereto, will apply during such
temporary assignment."
The Organization argues without rebuttal that the working day for
temporarily assigned Foreman is twenty-four (24) hours. The Organization
states that Claimant was paid as a Carman, but received "extra time off with
pay to compensate for the difference in carman's pay and foreman's pay (in noncompliance with the Agreement...)." Again, there is no rebuttal by the Carrier. This Board has often held that when there is ample opportunity and no
rebuttal, such assertions must be accepted as fact.
In addition, the Organization produced a signed statement by twelve
Carmen to the fact that "Carman J. W. Connell _has worked as a Foreman on Sunday's for over a year" and that they received orders from him. The Organization further provided forms from that January 18, 1987, date ("Cars Released
From Shop" and "Original Record of Repair") listing Mr. Connell as Foreman and
Supervisor. This is strong evidence which overweighs the Carrier's assertion
that he "was not working in a supervisory capacity"; an assertion without supporting fact.
Nowhere did the Carrier deny on property the Organization's argument
that:
"On Sundays Mr. Connell assigns all Carmen to their
jobs, fills out payroll sheets, he gives orders on
all work that comes in on Sunday, he delegates his
authority on all decisions on cars that need a Foreman's authority and all other duties of a Foreman.
He does not have any assistance or Supervision with
his Foreman duties from the departure yard Foreman."
In this instant case, the Carrier has raised numerous new arguments
before this Board. By long established precedent they come too late for our
consideration. These arguments and evidence include among others, the use of
Carman Sapp's name, the seniority roster, the rebuttal to the above quote on
Connell's duties, the applicability of Rule 19 (e), and the failure of the
Organization to Claim Foreman's pay for Mr. Connell.
Based on this record as developed on property, the Carrier has violated Rule 19 (e) when they assigned Carmen Connell to the temporary vacancy
of Foreman on Sunday, January 18, 1987, and then used him in place of the
Claimant as a wrecking crew member. The Claimant's rights were violated.
Finding no objection raised on the property to the requested compensation, the
Claim is sustained as presented.
Form 1 Award No. 11777
Page 3 Docket No. 11582
89-2-88-2-68
A W A R D
Claim sustained.
NATIONAL-RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
"-Nancy *TWVer - Executive Secretary
Dated at Chicago, Illinois, this 25th day of October 1989.