NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20306
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
( (Lake Region)
STATE,' OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it abolished the
positions of combination carpenter-relief drawbridge engineer at Buffalo,
Yew York on October 15, 1971 and at Cleveland and Lorain, Ohio on October
22, 1971 and concurrently therewith furloughed the incumbents thereof
while requiring the first shift operator at each location to perform the
work of the abolished positions at overtime rates (System File MW-BVE71-16).
(2) The incumbents of the aforesaid combination positions (Gordon Hackett at Buffalo; Thomas Seg
each be allowed 40 hours' pay at their respective rates of pay beginning
with the date of their respective furloughs and continuing until they are
returned to service on the positions from which they were furloughed.
OPINION OF BOARD: Claimants seek 40 hours' pay at their respective rates
of pay beginning with date of abolishment of their
positions and then being furloughed. The circumstances are as follows.
At three locations on the Lake Erie Division, Buffalo, New York, Cleveland
and Lorain, Ohio, the Carrier maintains three drawbridges. These draw
bridges are operated by employees covered by the February 1, 1951 Agree
ment made by the New York, Chicago and St. Louis Railroad Company and the
Brotherhood of Maintenance of Way Employes,
which agreement
covers the
the Carrier's employes on what was formerly known as the Nickel Plate
Road. Drawbridge operator positions, when in existence, are maintained
around-the-clock, seven days per week. Since the inception of the 40 hour
work week in 1949, in order to provide each regular drawbridge operator
with five consecutive work days and two consecutive rest days, the schedules
have provided: at each of the three bridges, (1) three regular five day
positions, one on each of the three shifts; (2) one regular five day relief
position to relieve two of the aforesaid regular positions on each of their
respective two rest days for a total of four relief days and to relieve on
one of the two remaining rest days of the third position; (3) this left one
rest day of each regular five day position to require relief (generally
referred to as "tag end relief day"). This tag end relief was provided by
establishing three positions, consisting of four days as carpenter in the
Bridge & Building gang, and one day as relief drawbridge engineer. The
three Claimants herein occupied these three tag end relief positions which
were abolished.
Award Number 20334 Page 2
Docket Number W-20306
On October 15, 1971, the carpenter-relief drawbridge operator
position at Buffalo was abolished, and on )ctober 22, 1971, the positions
at Cleveland and Lorain, Ohio were abolished. Following the abolishment
of the positions, the tag end day was worked by the regular incumbent and
was paid for at overtime rate. The Organi--ation has made no objection to
the regular incumbents working on their rest day. They contend, however,
that in requiring the incumbents to work on their rest day, the Claimants
were deprived of their agreement rights to the positions which were abolished. The Carrier, on the o
not needed, denying it has any contractual obligation to continue four
days of unneeded carpenter positions in order to provide one day of tag
end relief.
Basic to the contentions of the parties, is Rule 24(f) of Agreement, reading in pertinent part:
(paragraph 1) "All possible regular relief assignments
with five days of work and two consecutive rest days will
be established to do the work necessary on rest days of
assignments in six or seven-day service or combinations
thereof, or to perform relief work on certain days and
such types of other work on other days as may be assigned
under this agreement or as may be agreed upon between the
carrier and the General Chairman."
(paragraph 4) "It is understood that regular relief assignments may include one, two, three or four
track or B&B employes and that on the other days of the fiveday week such employes will be assig
watchmen, drawbridge operators or pumpers as designated by
the bulletin. Seniority in such positions will not be
accumulated in the track or B&B service to which assigned."
We construe Rule 24(f), first paragraph, as mandatory and not permissive.
The language, "All possible regular relief assignments with five days of
work and two consecutive rest days will be established to do the work
necessary on rest days of assignments in six or seven-day service or combinations thereof", includes
are plainly mandatory. Although the fourth paragraph uses the term "may"
in the clause, "regular relief assignments may include one, two, three,
or four days' service" we read these terms as descriptive of what
"regular relief assignments" may include and not as qualifying the mandatory requirement of the firs
"will be established".
I
Award Plumber 20334 Page 3
Docket Number .bI-20306
Each term, of course, in Rule 24(f) must be given effect. The
phrase, ":411 possible regular relief assignments", at the beginning of
the first paragraph, contains the term "possible". The term "possible"
is not redundant or unnecessary. Nor can this Board subtract the term
by rewriting the rule under the guise of interpretation. The term
"possible" qualifies the mandatory obligation of the Carrier to establish regular relief assignments
"possible" regular relief assignments.can be established then the Carrier's duty to do so is operati
assignment can be established, then the Carrier's obligation to do so
is not operative. As this Board has held in Award No. 14092, (Dolnick)
the Claimant has the burden of presenting probative evidence in support
of the claim that the regular relief assignment was "possible". In
the instant case, there is no such showing of probative fact by the
Petitioner. Nowhere in the record, which we have carefully reviewed,
is there evidence to controvert the Carrier's stated ,judgment that the
four days of carpenter work included in Claimant's positions were not
needed. Nor do the Employes present probative evidence otherwise to show
how "possible" regular relief assignments might have been put together of
work elements.
We are
mindful
of the principle expressed in Award No. 5127
(Coffey):
"As an abstract principle, the decisions of this
Board uniformly hold that where the work of a position remains, it may not be abolished, but if the
work has disappeared in whole or to such an extent
as to leave nothing for the employe to do for a
substantial part of his time and for a reasonably
sustained period, the position may be abolished.
However, the Carrier may not, under the pretense
of abolishing positions, evade the application of
an established rule, nor take an undue advantage
of the employes by discontinuing positions when
there is a real necessity for their continuation."
Applying the aforeaUted principle to the farts and rules of agreement in
the instant case, it is our opinion that the Carrier bas not evaded the
application of an established rule nor taken an undue advantage of the
employes by discontinuing positions when there was no real necessity for
their continuation. The Carrier properly abolished Claimants' positions
of four days of unneeded carpenter work and one day of tag-end relief
performed by the regular incumbent on his rest day as overtime to which
there is no objection by the Petitioner.
Award Number 20334 Page
4
Docket Number tW-20306
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the peaties waived oral hearing;
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
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 31st day of July, 1974.