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 employe 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.
In April, 1990, the following bulletin dated April 27, 19901 was posted at all Carrier's Mechanical Department facilities, including Williamson, West Virginia:
The organization in its submission to this Board made reference to an April 20, 1990 bulletin. However, it is clear that this is a typographical error, since during the handling of this dispute on the property both parties referred to the April 27, 1990 bulletin at issue. Form 1 Award No. 12653
On June 20, 1990, the organization took exception to this notice and initiated the instant claim. It contended that the issue of unsafe practices and the Carrier's attempt to discharge those employees who demonstrate persistent unsafe practices falls squarely under terms and conditions of employment and thus become a mandatory subject of bargaining.
The Organization elaborated upon this argument further in its submission to this Board. It argued that the Carrier in issuing the April 27, 1990 bulletin has unilaterally imposed a new term and condition of employment. Prior to April 27, 1990, the organization submits, employes were never told that they had an affirmative obligation to protect themselves, others and the Carrier's property or risk the imposition of discipline. By the same token, employes had never previously been informed that persistent unsafe practices Form 1 Award No. 12653
In further support of its position, the Union cites a case decided by the United States Supreme Court which, in its view, controls, the outcome of the instant matter. In Detroit and Toledo Shore Line R.R. v. UTU, 396 U.S. 142, 152-53 (1989), the Court stated:
That same principle was recognized in Special Board of Adjustment No. 957, Award No. 17, which concluded that the existilag agreements on the property did not provide the Carrier with tile authority to discipline employes for failing a drug test. The Arbitrator noted:
While the organization's principal position is that Carrier acted improperly in issuing the bulletin at issue without first negotiating over the desired change, the Organization for the first time in its submission raised several additional arguments. First, it asserted that the April 27, 1990 bulletin violated the controlling Agreement. Essentially, the organization took the position that employees are contractually required to report injuries as they occur, but with the promulgation of the new policy, employes would unfairly be subject to discharge for complying with the reporting requirement.
Second, it was argued that the new policy is unreasonable on its face. The Organization submits that since there are many scenarios in which an employe could, through no fault of his ohm, Form 1 Award No. 12653
be involved in a safety related incident which under the new policy would result in discipline to the employe, it is inherently unfair to subject employes who often work under dangerous conditions to an added disciplinary penalty.
The major thrust of Carrier's argument is that it has the inherent managerial right to promulgate safety rules and in particular to ensure that employes perform their duties as safely and efficiently as possible. Carrier argues that the organization has no right to demand negotiation regarding the establishment of operating or safety rules. Carrier stresses that it has the right to establish reasonable safety rules so long as they do not conflict with the collective bargaining agreement or the law.
Third and equally important to the Carrier, the Organization, in its view, has failed to establish that any rule or agreement was, in fact, violated. As the moving party, the Organization had the burden of proving the elements of its claim, and, in this case, Carrier maintains that the record is devoid of any evidence to support the organization's newfound contention that the bulletin constituted a violation of the Agreement.
Finally, Carrier asserts that the April 27, 1990 bulletin merely stated what has been standard practice for many years. Safety has always been a paramount concern and employes who violate safety rules or are negligent in the performance of their duties have always been subject to discharge. Thus, Carrier argues, there is no basis for the organization's contention that the April 27, 1990 notice constituted a unilateral change in working conditions.
After careful review of the record in its entirety, this Board is persuaded that the organization's claim in not meritorious. As a preliminary matter, we note that the Organization raised a number of arguments before this Board which were not advanced during the handling of this dispute on the property. We are precluded from addressing those arguments as they are improperly advanced, as numerous prior awards of this Board have stated.
Therefore, the sole issue properly before us is the question of whether the bulletined notice regarding persistent unsafe practices constituted a mandatory subject of bargaining because it was in fact a change in the status ug___oo. The burden of proof on that issue lies with the organization, but the record provides no evidence beyond assertions and argument on the part of the Organization, we believe. Moreover, Carrier clearly rebutted the Organization's assertion that safety rules have not been promulgated in the past. Whether or not employes have been disciplined or discharged for "accident-proneness" is new argument. The Organization also has not established that this safety bulletin is Form 1 Award No. 12653
a "rule" which conflicts with the collective bargaining agreement or the law or is unreasonable on its face. Issues of application of the bulletin as a rule may be resolved on a case-by-case basis, as routinely done. Given the particular posture of this record, we are constrained to find that the organization has not met its burden of proof.