Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12116
 SECOND DIVISION Docket No. 12052
 91-2-90-2-165
 The Second Division consisted of the regular members and in
 addition Referee Raymond E. McAlpin when award was rendered.
 (International Brotherhood of Electrical Workers
 PARTIES TO DISPUTE:
 (The Baltimore and Ohio Chicago Terminal Railway Company

 STATEMENT OF CLAIM:

 1. That the Baltimore and Ohio Chicago Terminal Railroad Company, in violation of the controlling agreement, arbitrarily, capriciously and unjustly assessed Electrician J. V. Grajek discipline consisting of dismissal from company service as a result of hearing on July 18, 1989; and,

 2. That the Baltimore and Ohio Chicago Terminal Railroad Company return Electrician Grajek to service with his seniority unimpaired and compensate Electrician Grajek for all time lost from July 28, 1989, until he is returned to service; and,

 3. That the Baltimore and Ohio Chicago Terminal Railroad Company allow Electrician Grajek all contractual entitlements and benefits including but not limited to; credit for vacation and personal day purposes, credit for Railroad Retirement purposes; health and hospitalization, dental and life insurance premiums; and,

 4. That the Baltimore and Ohio Chicago Terminal Railroad Company expunge Electrician Grajek's service record of all mention of the unjust discipline.

 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 employer 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.

The Claimant, an Electrician with the Carrier with a seniority date of May 23, 1978, was dismissed from service on July 28, 1989, for alleged excessive absences.
 Form 1
 Page 2

 Award No. 12116
 Docket No. 12052
 91-2-90-2-165

 The Board finds that the Carrier has proven the essential elements of its case. The Claimant's absentee record during the period in question was inappropriate and excessive. There are many decisions of this Board which find that even absences for the best of reasons at some point are excessive. A review of the Claimant's past record shows that he has been the subject of substantial and longstanding efforts on the part of the Carrier to improve his attendance, apparently, to no avail. Therefore, the Board finds that the Carrier appropriately exercised its judgment in dismissing this employee.

 Notwithstanding the above, the Board also considered the medical evidence which was presented to the Hearing Officer during the Investigation. That evidence stated that the Claimant suffers from sleep apnea. This is a sleep disorder which results in episodes where the automatic breathing process shuts down. This does result in interrupted sleep patterns. This does not prevent, but merely makes it more difficult for the Claimant to protect his assignment. In addition, this evidence was presented very late in the process, and there is no showing that the Claimant sought appropriate treatment for this condition, and that his attendance would be any better in the future than it was in the past. Therefore, the Board reiterates its findings that the Claimant engaged in excessive absenteeism even though some of his charged absences and tardiness may have been for good cause. The Carrier has not abused its discretion and acted in an arbitrary and capricious manner and, therefore, the claim will be denied.

 A W A R D

 Claim denied.

 Attest:

Dated at Chicago, Illinois, this 14th day of August 1991.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

CARRIER MEMBERS' DISSENT

TO

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

11934, 11936, 1.1990, 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 they 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."







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

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 Cayman 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 29(1 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



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: law

      "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.


                          _ 4 _ _.

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

In Award 16 of PLB 'E170, 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 nonintermodal 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 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


                          - 6 -

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

                                              r

    . L. HICKS M. C. LESNIK


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