Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12092
SECOND DIVISION Docket No. 11893-T
91-2-90-2-15
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:
(Louisiana and Arkansas Railway Company
STATEMENT OF CLAIM:
1. That the Kansas City Southern Railway Company violated the
controlling agreement, particularly Rules 72 and 28, when they arbitrarily
assigned Mechanical Foreman M. L. Huckaby to inspect cars loaded with pipe
coming out of Stupp Corporation for tiedowns on loads, mechanical defects and
safety appliances on six cars on August 24, 1988.
2. That accordingly, the Kansas City Southern Railway Company be
ordered to compensate Carman G. W. Cook, Baton Rouge, Louisiana, in the amount
of four (4) hours at the straight time rate for August 24, 1988 as he was
available to perform this carmen's work.
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 American Railway and Airway Supervisors Association was advised of the pendency of this dispute, but chose not
to file a Submission with the Division.
On August 24, 1988, one of Carrier's Mechanical Foreman "inspected"
six cars loaded with pipe on the property of a shipper to "oversee that [the]
cars were being loaded in accordance with AAR rules" before they were moved
from the industry to Carrier owned trackage. After acceptance of the shipment
the cars were again inspected by Carmen assigned at Carrier's Baton Rouge
Yard. The Organization claimed that the inspection completed by the Foreman
was work reserved to Carmen under its Agreement.
Form 1 Award No. 12092
Page 2 Docket No. 11893-T
91-2-90-2-15
In support of its arguments the Organization relies, inter alia, on
Second Division Awards 10678, 10825, 11519, 11676, and 11934 which held that
the Carmen's Agreement was violated when supervisors performed inspections
under various circumstances dealt with therein. In its defense, Carrier
stresses that the "inspections" were designed to ensure that the cars were
properly loaded and secured, did not occur on its lines at a point where the
Carmen's Agreement was applicable, and when examined the shipment was not
under its control.
Each of the Awards cited by the Organization involved situations
where the complained of inspections examined the cars for mechanical defects
and occurred on trackage under the control of the carrier there involved. In
such situations the Awards were appropriate.
However, we have problems extending the application of the Awards
cited to an activity occurring at a shipper facility when the "inspection"
does not involve checking the cars for mechanical defects, but instead is for
the sole purpose of ensuring that loading was proper and in compliance with
AAR rules and the cars are then given a regular inspection by Carmen when
accepted for shipment. In these circumstances, it must be demonstrated that
the Carmen's Agreement is applicable to the "inspection" which occurred at the
shipper facility. This has not been done here.
The Claim is without merit. It will be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ncy J. -Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1991.