Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11934
 SECOND DIVISION Docket No. 11552-T
 90-2-88-2-63
 The Second Division consisted of the regular members and in
 addition Referee John C. Fletcher when award was rendered.

 (Brotherhood Railway Carmen/Division of TCU PARTIES TO DISPUTE:

STATEMENT OF CLAIM
1. That the Duluth, Missabe and Iron Range Railway Company violated the terms of our Agreement, in particular Rules 29 and 57, when Car Superintendent J. J. Uhan and Trainmaster R. Ringhofer performed inspections of ore cars at Wilpen.

 2. That accordingly, the Duluth, Missabe and Iron Range Railway Company be ordered to compensate Carmen C. T. Leveille and D. R. Kolenda in the amount of four (4) hours each at the straight time rate for May 8, 1987.

 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.

As Third Parties in Interest, the Transportation Communications International Union, the Brotherhood of Maintenance of Way Employes, and the United Transportation Union were advised of the pendency of this dispute. The Brotherhood of Maintenance of Way Employes filed a Submission with the Division; the Transportation Communications International Union and the United Transportation Union did not file Submissions.

 On May 8, 1987, two Carrier Supervisors checked ore cars located in Wilpen Yard, a little-used, remote location, where excess equipment is stored, to determine if the cars were suitable for service with one of its minor ore shippers. The Organization filed a Claim contending that its Agreement was violated when Carmen were not used for this inspection.
 Form 1 Award No. 11934
 Page 2 Docket No. 11552-T
 90-2-88-2-63







Carrier maintains that it is not blind to the language of Rules 29 and 57, but a separation must occur between simple observa;:'ons of equipment, which may be performed by many different employees and technical inspections of cars, such as brake valve examinations, which would be Carmens' work. The role of the Supervisors in the instant case was not an inspection of the type Carmen could expect to perform under their Agreement, it is argued, but more akin to general examination to see if the equipment was suitable for loading.

 We don't agree. In this record it is obvious that a Trainmaster and a Car Superintendent went to Wilpen Yard for the sole purpose of determining if certain equipment stored there was fit to place in service for one of its ore shipping customers. While there, the inspections conducted were obviously more involved than simple equipment observations of a general type. In fact, after the task was completed Carmen were furnished with a handwritten diagram, prepared by the Car Superintendent, indicating which cars needed special attention.

 Inasmuch as the facts support a conclusion that the activity of the Supervisors at Wilpen Yard was more in the nature of a Carman's inspection than that of a casual observation of cars the Claim of the Organization will be sustained.




                          By Order of Second Division


Attest: ,
        Nancy J. -Executive Secre-krary


Dated at Chicago, Illinois, this 28th day of November 1990. .fir'

CARRIER MEMBERS' DISSENT

TO

AWARDS 12122 - 12130, DOCKETS 11905, 11913, 11914,

11934, 11936, 11990, 12037, 12116, 12117

(Referee Fletcher)


In 1986, the Contracting Parties entered into a National Agreement providing for a specific rate of pay for those involved in Intermodal Service. The purpose for negotiating such a provision was to enable the railroads to compete with trucks and other modes of transportation handling Intermodal traffic. It was never the intent of the contracting parties that such ability to compete with other modes of transportation would fluctuate on a day to day basis but was to provide a level and stable platform from which the railroads could confront the other transportation modes. In these cases, the Majority has correctly found that Barstow, California, one of nine locations on this railroad performing Intermodal work, was covered by Section 1(b) of Article IV of the November 19, 1986 Agreement. All of the Claimants held positions that were engaged in work in connection with Intermodal equipment and they had been compensated in accordance with Section 2 of Article IV almost two years prior to the filing of the first case here involving December, 1988. The majority also properly concluded that the language, "preponderantly engaged" does not, "limit employees such as Claimants to work exclusively in connection with intermodal service."


      The only issue in these cases was:


      "...at what point is the Carman no longer working on a position 'preponderantly engaged in work in connection with the operation of intermodal facilities.'"

t

 While the Majority states as a fact that:

      "The Agreement gives us no guidance " -

as to how to evaluate "preponderantly engaged" it has nevertheless
 concluded that such is to be done on a daily basis. This
 conclusion is wrong for the following reasons.

First, as noted above, there is NO CONTRACTUAL BASIS for such a conclusion. The positions involved were bulletined and were awarded as INTERMODAL POSITIONS having a regular five day work week. As the Majority has noted, "Unless it is demonstrated the work on a particular intermodal position is not somewhat consistent..." (Emphasis added), said position is an intermodal position compensated at the intermodal rate. Therefore, in order to assert entitlement to other than the intermodal rate, it must be demonstrated that the work of a position is sufficiently erratic to warrant it NOT being included under the rubric of "preponderantly engaged." In these cases there is no evidence of any position being shown as being such an erratic position that it was not entitled to be identified as an intermodal position.

Furthermore, the Majority's conclusion that, "when more than half the work day... is spent in connection with intermodal service," identifies an intermodal position, does severe violence to the concept of assigning positions by bulletin in this industry. One example will prove the point. An intermodal worker who spends 3 1/2 hours each work day of his assignment in other than intermodal service is an intermodal worker since, "more than half the work day" is in intermodal service. However, an individual who


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spends the same amount of time on non-intermodal work but only on Monday and Tuesday of the work week is not an intermodal worker on two days of his work week. The same time, effort and work is expended, yet there are two different results. Such is not what the Parties intended and such action certainly does not provide a stable means to compete against the other modes of transportation.

Secondly, on the assumption that these nine claims represent the actual incidence of intermodal workers performing nonintermodal work at this location, we have a total of 51 dates consuming 587 hours, 40 minutes in just over 48 weeks (December 12, 1988 - November 14, 1989 - 240 work days). If just one Carman worked 3 1/2 hours each work day during these same 48 weeks in nonintermodal work he would have expended 840 hours in non-intermodal work for which he would be compensated only at the intermodal rate. It just does not make any rational sense that an individual could work 43% more than the total represented in these nine claims on non-intermodal work and be within the guidelines of these Awards. Yet, these multiple Claimants working far less hours in nonintermodal work are found here to be entitled to the other than intermodal rate.

In Award 12122, involving the largest number of Claimants (13), the largest number of dates claimed (18) and the most time (290 hours) over a six week period (December 12, 1988 - January 20, 1989) we find that the 290 hours claimed is less that 16$ of the time worked by these Claimants (13 Claimants x 8 hours x 18 dates = 1872 hours). If we look at the time worked by these same 13


                          - 3 -

Claimants over the six week claim period (13 Claimants x 8 hours x 5 days/week x 6 weeks = 3120 hours) the total claimed is less than 10~of the time worked. By any calculation, other than on a daily basis, it is self-evident that Claimants were "preponderantly engaged" in intermodal work and were so engaged not just the majority of the time but the vast majority of time employed. Had the Parties desired to require that the determination of the status of the position being intermodal or not to be made on a daily basis it would have been a simple matter to have so stipulated. However, as the Majority has properly noted, there is no Agreement provision that supports such a conclusion.

Third, the Majority itself has noted the lack of contractual basis for making daily determinations when it acknowledges the need to provide an exception:


      "The Board recognizes that there may be circumstances, due to factors such as traffic patterns, when it is

      appropriate to measure the work over a somewhat longer period of time, e.g., a work week."

Obviously, the recognition, "that there may be circumstances" in which a daily determination would not apply, upholds and confirms the fact that there is no contractual provision to support the conclusion reached in these Awards. Furthermore, what are the traffic patterns that would entitle the Carrier to, "measure the work over a somewhat longer period of time..."? What other circumstances might be "appropriate"? To acknowledge the need for exceptions warrants the conclusion that an evaluation on a daily basis was not the intent of the Parties in negotiating Article IV.

The result made in this matter is a disposition made on perceived equity and not on any contractual support.

In Award 16 of PLB 4170, involving the application of the intermodal rate, we find the following:


      "If Claimants' positions are not primarily in

      intermodal service, they are not subject to Article IV. In resolving this dispute, we can consider only the

      evidence presented to us. The Carrier has furnished a computer generated report for the fourth quarter of 1988 which shows the number of man hours charged to various functions for each intermodal employee at Inman Yard. According to this report, Claimant Bailey worked 479.7 hours in intermodal equipment repair and 28.3

      hours in shop maintenance. Claimant Tatum worked 388.7. hours in intermodal equipment repair and 8.8 hours in

      ship maintenance .... The Organization, on the other

      hand, has submitted bulletins describing the jobs in question. Because maintaining pig cranes is only one of three duties listed on the bulletin, the

      organization concludes this work constitutes only onethird of the job. In light of .the Carrier's more

      precise time records, we cannot accept the

      organizations's conclusion. Based upon the Carrier's records, it is evident that Claimants' jobs are

      primarily in intermodal service." (Emphasis added)

Here, the review was over a thirteen week period; not daily. Again, there is no support either in Article IV of the November 19, 1986 Agreement or in Letter No. 3 for the conclusion that bulletined and assigned Intermodal positions are to be reevaluated and reclassified on a daily basis.

The Majority, in support of its conclusion has noted that this Board historically, "...has examined the nature of an employee's work on a daily basis" and that there is nothing in the 1986 Agreement that would change that view. However, such a conclusion can only be reached if the basic purpose of the Intermodal provisions are ignored. No railroad can compete with other less


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costly transportation modes when its ability to compete is
 restricted by an artificially imposed barrier.
 The majority also relies on rules 20 and 38 to support its
 position of daily review. However, Rule 20 applies.to the rate of
 pay for the filling of vacancies and there is no dispute that these
 cases DO NOT INVOLVE THE FILLING OF A VACANCY. It is a fact of
 record that the Claimants were assigned at the time to intermodal
 positions by bulletin and assignment. There was no issue raised
 concerning the filling of vacancies. And certainly there is no
 dispute that Claimants properly could be required to perform non
 intermodal work so long as they were "preponderantly engaged" in
 intermodal work. Thus, there were no other positions nor were
 there any vacancies to be filled. Concerning Rule 38, it was NEVER

 raised on the property but was first raised by the organization in 'WSW
 their Submission to this Board. Even though such argument should
 have been excluded as being in violation of this Board's Circular
 No. 1, the fact is that the parties by agreement in that rule did
 make a specific contract provision, detailing when and how there
 would be a change in the rate paid for welding. The Majority has
 noted the fact here that there is NO SUCH RULE PROVISION in Article
 IV.
 Finally, it was the Organization that asserted a violation of
 Article IV on the property. Thus, it was the Organization's burden
 to prove with substantial evidence that the National Agreement
 adopted on November 19, 1986, DID PROVIDE for the application of
 the intermodal rate to be made on a daily basis. The Majority has

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correctly concluded that the National Agreement DOES NOT contain such a provision and in fact, the Agreement provides NO GUIDANCE in this regard. The organization's claims should have been denied on their failure to support their claims with evidence. Whatever the Parties meant by the term "preponderantly engaged" it is clear on these records that Claimants, at all times relevant, were "preponderantly engaged" in intermodal service and it was contractually proper to compensate them at the intermodal rate.


      We dissent.


P. . VARGA M. W. FINGE HUT

 ~a

              1

M. C. LESNIK