Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13548
Docket No. 1343;
00-2-99-2-27
The Second Division consisted of the regular members and in addition Referee
Martin H. Malin when award was rendered.
(Brotherhood Railway Carmen Division
(Transportation Communications International Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Baltimore and Ohio
( Chicago Terminal Railroad Company)
STATEMENT OF CLAIM:
"Claim of the Committee of the Union that:
1. That the Baltimore & Ohio Chicago Terminal subsidiary of CSX
Transportation, violated the current Working Agreement when they
failed to call eight (8) carmen to work to dismantle three (3) freight
cars on both Saturday, December 15 and Sunday, December 16,
1997 to do carman's work on overtime on each of the above dates on
the 1st shift 7:00 a.m. to 3:00 p.m.
2. That the Baltimore & Ohio Chicago Terminal subsidiary of CSX
Transportation (hereinafter referred to as the Carrier) be ordered
to compensate Carmen F. Zurek LD. #597955; D. Moster LD.
#597125; D. Cason LD. #596065; R. Thomas LD. #596060; D.
Wozek LD. #320309; G. Miller LD. #321659; E. Page LD. #202199;
and C. Madden LD. #180687 (hereinafter referred to as the
Claimants) when they were available, qualified and willing to
perform carman's work consisting of eight (8) hours each at the
carman's punitive rate of pay as provided under the applicable
rules of the Controlling Agreement."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 13548
Page 2 Docket No. 13432
00-2-99-2-2 T
The carrier or carriers and the employee or employees involved in this dispute:
are respectively carrier and employee 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 were given due notice
of
hearing thereon.
The instant claim arose when the Carrier employed an outside contractor to
dismantle three rail cars at Barr Yard in Chicago, Illinois, on December 15 and 16,,
1997. The Organization contends that the Carrier violated Rule 26 - Assignment of
Work, which provides:
"None but mechanic or apprentices regularly employed as such shall do
mechanics' work as per the special rules of each craft . . . ."
The Organization further maintains that the Carrier violated Rule 41 -
Classification of Work, which provides:
"Carmen's work shall consist
of
building, maintaining, dismantling, . . .
and all other work generally recognized as carmen's work." (Emphasis
added)
The Carrier maintains that the rail cars were sold to Gulf Coast Dismantling on
an as is, where is basis. Consequently, the work fell outside the scope of the Agreement.
The issue presented in the instant case has been considered in numerous Awards.
Typical thereof is Second Division Award 8341, where the Board stated:
"The Board finds that the Carrier's overriding intention was to dispose of
the cars and actually sold them not with a view to retaining them in their
component parts (i.e., scrap and reusable parts). Nevertheless, the Carrier
did specify in advance - by contract and 6y identification with its own
personnel - that it wished to retain certain equipment on the cars. This
portion of the work fell clearly within the `dismantling' function for
salvage purposes. These salvaged items did not effectively leave the
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Page 3 Docket No. 13432
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Carrier's possession, and the work was clearly within Carmen work
classification."
The Carrier's reliance on Second Division Award 10413 is misplaced. In that
case, the Board evaluated the record as follows:
"The evidence of record clearly establishes that ownership of the cars
passed to Midwest Steel and Alloy Corporation as per purchase order No.
4629 of Carrier dated May 29, 1980. Other than the assertion that air
brakes and equipment, couplers and draft gears were salvaged, the record
contains no probative evidence to support such a claim."
However, the Sales Order in the instant case expressly provides that the Carrier
was to retain certain wheel and air brake material. Thus, the claim must be sustained
with respect to the material that the Carrier retained, but denied with respect to all
other material that was sold to Gulf Coast Dismantling. Accordingly, we will award
four hours pay at the straight time rate to each Claimant.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 29th day of September, 2000.