NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
(1) The Carrier violated the Agreement beginning on October 1, 1961, when it failed to assign the senior track foremen and the senior track laborers at Gary Mill Yard to perform rest day and overtime work at that location. (Carrier's files VM-16-61, VM-16-61 and VM-17-61.)
(3) A joint check of the Carrier's records shall be made to accurately determine the employes to whom claims should be paid and the amount due each.
construction operations at Gary Mill. Thereafter, the bulk of this mechanized equipment was procured piece by piece over the next nine months. On the latter basis, it was assigned to and worked into the operations of the respective gangs. The operations throughout this period were in a state of continual adjustment and readjustment. Additional Crane Operator positions and Roadway Machine Operator positions were added to the respective gangs as more and more equipment came in. Gradually, .the gangs became more and more mechanized and efficient. As this machinery was worked into the respective gangs it did not immediately replace laborers for they had to pick up the slack while an efficient mechanized operation was worked out in such close confines.
Some of this equipment was utilized 24 -hours a day, 7 days a week; it of course had to be serviced and maintained on ,the same basis. In order to accomplish the latter, a minimal number of Motor Car Repairmen and Garage Servicemen were assigned to seven day positions, staggered jobs, on the first shift, only. Since 1951, Gary Division and Joliet Division Motor Car Repairmen and Garage Servicemen have been working on more than one shift on a Monday through Friday basis. (For corroboration of the latter statement, see pending MW File 2100, involving the instant parties.)
The increasing intensity, concentration and congestion of the traffic patterns at Gary Mill have placed a definite limit on .the amount of mechanized construction and maintenance equipment that effectively can be utilized on one shift. As a matter of fact, by the end of 1962 the Carrier attained the saturation point or the maximum effective peak of construction and maintenance operations on the first shift at Gary Mill. Beyond this point only diminishing returns were experienced.
The applicable BMWE Schedule was revised and re-issued effective August 1, 1952, and it is on file at the Board. The previous schedule was dated effective December 1, 1945.
The Carrier and the Organization are parties to the March 19, 1949 National 40 Hour Work Week Agreeemnt and we are parties .to Article V of the August 21, 1954 National Agreement.
When the Organization's August 1, 1952 Schedule was revised, the National 40-Hour Work Week Agreement was incorporated into its body. The provisions of the National 40-Hour Work Week Agreement presently are set forth in Rules 22, 25, 27 and 28 of the August 1, 1952 bound edition of the Organization's Schedule.
The Board may also desire to examine the provisions of Rules 29(a), 30, 33, 57 and 59(c).
OPINION OF BOARD: On October 1, 1961, without agreement by Organization, Carrier inaugurated a 3 shift, 7 day a week (21 trick) track maintenance and construction operation ,and began on that day to implement it by making new work assignments to certain employes on the basis of their
bids for the posted new positions and their seniority. The new 21 trick operation was accompanied, among other things, by increased mechanization of the work and the introduction of new and additional mechanical equipment; as this progressed there was a consequent expansion of secondary functions of servicing and supplying the more mechanized operations. Thus changes in positions to seven day positions continued to take place in stages at various 'lines subsequent to October 1, 1961. Organization filed 18 claims reflecting this series of events, starting with three on November 8, 1961, which related to the October 1, 1961 changes in positions, .and up to June 26, 1962, when it filed three relating to changes in positions on April 30, 1962; these were grouped and progressed to this Board as five separate cases in Dockets MW-14861, 14862, 14928, 14929 and 14930, and were considered by us at the same time.
We have disposed of the claims in Docket MW-14861 in our Award No. 17030 on .the procedural grounds that Organization failed timely to progress it on the property and could not, as it attempted to do, properly refile the identical claim changing only the effective date of the claimed remedy. The claim in this case rests on the same basic contract question and arises out of the same events as the claims in MW-14861. Carrier argues that, since Organization chose to divide its cause of action between these cases, and MW-14861 is the "pilot case," the second (here involved) case should meet the same fate as the first and be dismissed. MW-14861 was dismissed for failure to meet the Time Limit Rule and without consideration of the merits; the Time Limit Rule, however, was met in this case and there is thus no reason to refrain from dealing with it on its merits.
The claim in this case is based on Organization's contention that certain new positions established unilaterally by Carrier on October 1, 1961, in connection with inaugurating the 21 trick operation were improperly established because Carrier failed and refused to negotiate the new positions with Organization; therefore, argues Organization, in assigning work on those new positions at hours which were overtime hours of the previous 5 day per week operation to employes junior to Claimants, Carrier violated the seniority rights of Claimants.
Organization introduced as part of the record in this case its entire Submission in MW-14861, where it argued basically the impropriety of the steps taken in the unilateral establishment of the 21 trick operation; we have considered it in connection with this case. The position of Organization is that Rule 22(f) together with a Memorandum of Understanding dated July 9, 1949, with relation to its application, and Rule 59 (c) each require that Carrier may not change from a five day per week day shift operation to a 21 shift operation without prior negotiation and agreement with Organization.
Clearly on the face of .the Rule, 22 (f) deals only with changing the rest days of five day positions from Saturday and Sunday to Sunday and Monday, and not at all with the question we are here dealing with -the change from a five day, day shift operation to a 21 trick, seven day virtually continuous operation; thus neither Rule 22(f) nor the Memorandum are applicable to the facts in this case.
We do not consider that the establishment by Carrier of the new positions and hours necessary for operation needs be negotiated as a working condition within the meaning of Rule 59(c) (as argued by Organization in this case). The Agreement of the parties here clearly contemplated the possibility of a seven day per week, three shift operation and established working condition with relation thereto ;and we find no specific Rule requiring that Carrier negotiate before exercising its right to establish such an operation if it is required to meet the needs of the service.
The Agreement thus clearly contemplated the possibility that 7 day positions on more than one shift might be established and the working conditions for such positions were written into the Agreement by the parties; we would be exceeding our authority if we were to add to the conditions negotiated by the parties themselves.
Organization argues that past practice had been that Carrier negotiated before making or attempting to make similar changes in the past. We have
reviewed all the evidence submitted to support this argument and find that while Carrier did discuss on most previous occasions similar to this, it did not negotiate; in all the exchanges between the parties in the past, Organization asserted repeatedly that it was negotiating and that Carrier could not properly make the changes proposed without prior agreement by Organization; Carrier asserted that it was discussing the matters, but refrained carefully from agreeing that it was negotiating or was obligated to negotiate. Some examples are in the record of Carrier making changes similar to those here involved without negotiation with Organization. Thus the evidence of practice does not prove the meaning in Rule 59(c) and 22(f) attributed to them by Organization.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and