Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12312
SECOND DIVISION Docket No. 12326
92-2-91-2-137
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(Norfolk Southern Railway Company
(Southern Railway Company)
STATEMENT OF CLAIM:
1. That the Carrier violated the controlling Agreement when work
belonging to the Carmen's Craft was improperly assigned to employes other than
Carmen at Charleston, South Carolina on March 22, 1990.
2. That accordingly, the Carrier be ordered to compensate Carman
G. T. Harvey eight (8) hours pay at the rate of time and one-half.
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.
On May 17, 1990, a claim was filed by the Local Chairman at Columbia,
South Carolina on grounds that Foremen allegedly violated the Agreement at
Charleston, South Carolina, when they measured and inspected the
...
scraper
combination on flat car BN 630253... which was work which should have been
done by Carmen from the overtime board. According to the claim the Carrier's
officers violated Rules 42 and 132 on March 22, 1990 when they did the work at
bar. These Rules, in pertinent part, read as follows:
"Rule 42
None but mechanics or student mechanics regularly
employed as such shall do mechanics' work as per the
special rules of each craft except foremen at points
where no mechanics are employed."
Form 1 Award No. 12312
Page 2 Docket No. 12326
92-2-91-2-137
"Rule 132
Carmen's work shall consist of building, maintaining
dismantling, painting, upholstering, and inspecting
all passenger and freight cars."
In denying the claim, the Master Mechanic states the following:
"Carrier's General Foreman ....met with the shipper
prior to loading to review open top loading rules.
He used shippers' measurements for pre-clearances
of the load before the load was placed on BN 630258.
(A Carman) and (a Car Foreman) did go to Union Pier
to measure the open top load on (the car). They
compared these measurements with those submitted by
the shipper for clearance."
At issue in this case is whether the work at bar is "inspecting" work on this
property in accordance with past practice and/or whether the specific work
done by the Foremen on March 22, 1990, is work which accrues to supervision.
The Carrier argues that Foremen have "historically" measured highwide loads on this property, that it is a practice which had been in effect
"for many years" and that it is the duty of Carrier's supervisory forces "to
advise shippers as to blocking, securing and measuring high-wide loads." The
Carrier provides to the Organization, which is part of the record, an extensive file of statement.s taken at a variety of points on this property from
Raleigh, N.C. to Savannah, Georgia to Decatur, Illinois to New Orleans which
attest to the fact that "high-wide" loads have been measured by Foremen with
or without the assistance of Carmen. This file includes some 100 statements.
The Organization contests the evidentiary validity of some of these statements. It argues that some 71 of them were signed by employees working for
the Norfolk and Western and not the Southern Railway (wherein this claim originated); or by employees working at points unknown to the General Chairman; or
have other flaws such as being undated; that they refer only to open top
loads; and so on. It is the view of the Organization, with respect to the
instant narrow claim, that proof that the work was Carman's work is found in
the fact that the inspection form was, in fact, signed by a Carman albeit
supervision also participated in the inspection of the car on March 22, 1990,
at Charleston yard. Further handling of the claim on property produced yet
additional statements by the Carrier with respect to the issue of measuring "high-wide" loads. The Master Mechanic and two General Foremen at
Chattanooga, Tennessee, and Mobile, Alabama, respectively, state that there is
a mixed practice on this property with respect to measuring "high-wide" loads.
In the Chattanooga Territory, Foremen accompany and assist Carmen "in the measuring, in most instances" of high-wide loads at Chattanooga itself, but at
Sheffield, Tennessee, the measuring is done in "most" instances by Carmen, but:
in "many" instances Foremen will help when it is a question of "excessive
dimension" loads. At Mobile, Alabama, the work is always done by Carmen with
"occasional" help by Foremen.
Form 1 Award No. 12312
Page 3 Docket No. 12326
92-2-91-2-137
The record sufficiently establishes by means of substantial evidence
that the measuring of "high-wide" loads is a mixed practice on this property
and that the work is not exclusively the purview of Carmen although the evidence shows that in most instances Carmen participate in the measuring process. In some instances, it appears they do the measuring by themselves. The
Organization states that it was not aware of a mixed practice; that it considers the evidence presented by the Carrier as "self-serving"; and that the
work done by the Foremen was without the "knowledge or consent" of the Organization.
As moving party to the instant claim the burden of proof lies with
the Organization to show by means of substantial evidence that the work in
question is exclusively reserved to members of its craft as a matter of past
practice. Substantial evidence has been defined, for arbitral purposes in
this industry, as such "relevant evidence as a reasonable mind might accept as
adequate to support a conclusion" (Consol. Ed. Co. vs Labor Board 305 U.S.
197, 229). The Organization states that it simply does not believe the statements presented by the Carrier about supervision's participation in the measurement of "high-wide" loads. Even if the Board grants the Organization's
objections about some of the evidence, it must observe that there still remains some 30 highly corroborative statements which the Organizations does not
contest, and which it does counter with evidentiary rebuttal, but which warrant conclusion that the position by the Carrier in this case has considerable
foundation. The Board notes the argument by the Organization that the fact
that the Carmen signed the inspection papers in the instant case proves their
case. Such conclusion by the Organization is not consistent with the evidence
provided: the evidence only proves that the Carman participated in the measuring process and, that by custom, apparently, Carmen signed the papers when
such took place. There is no doubt that "inspecting" freight cars is Carmen
work as outlined in Rule 132. The arbitral precedent cited by the Organization establishes that fact. The language of the Rules at bar does not address
the specific issue, however, of measuring "high-wide" loads, nor does the
precedent cited address such question. The record before the Board establishes that Carmen do such work, and that they often (if not always) sign the
forms when such high-wide inspections are done. But the record does not establish that Carmen have done such work as a matter of exclusive purview. They
have often been helped, at various locations on this property, by supervisory
personnel. In effect, there is a mixed practice on this property and the
Board has no alternative, in view of the evidence of record, but to so rule.
The Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 29th day of April 1992.