NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-24853
Edward L. Suntrup, Referee
(Brotherhood of Railway, Airline and Steamship Clerks
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9663)
that:
Carrier violated the Agreement at Asheville, North Carolina,
when on various legal holidays during calendar year 1980,
it did not fill Cab Supply positions at that location and
allowed and/or required persons not covered by the BRAC
Agreement to perform work of Cab Supply positions.
For these violations, the Carrier shall now compensate
the hereinafter named claimants in the amount of eight (8)
hours' pay at the rate of time and one-half for the
dates specified by their names:
0. Watley --------------------February 17, 1980
W. M. Messer -----------------February 18, 1980
W. M. Messer -----------------September 1, 1980
D. W. Strickland-------------November 11, 1980
B. J. Cureton----------------November 26, 1980
W. M. hesser-----------------November 27, 1980
W. M. Messer -----------------December 24, 1980
OPINION OF BOARD: It is the position of the organization that current Agreement
Rules A-1, N-3 "and others" of May 1, 1973 between the Organization
and the Carrier were violated when Carrier employees not covered by this Agreement
performed certain work on the holidays specified in the Statement of Claim. By
reference hereto Agreement Rule A-1 is the Scope Rule (amended November 1, 1980)
and Rule N-3 is a synthesis of the National Holiday Agreement amended most
recently on June 16, 1979.
Substantively the majority of the claims here at bar center on certain
non-Agreement personnel who placed items on cabooses on holidays. The specific
items in question consisted of buckets of coal and, in one case, some ice. Before
ruling on the contract interpretation issues related to these claims, however,
the Board will first of all settle the factual correctness of the claims in view of
evidence present in the record, and it will also deal with one additional claim
which centers on jurisdictional rights to supply lantern batteries to the Carrier
Call Office at its Ashville, North Carolina facility.
Award Number 24811 Page 2
Docket Number CL-24853
On February 21, 1980, the Organization filed a time claim on behalf of
W. Watley who was allegedly denied holiday work because of buckets of coal which
were allegedly put on six (6) different cabs by General Foreman J. Warren. In
the record the Carrier provides substantial evidence, not rebutted by the Organization
that the claim is in default with reference to Carrier cabs X418 and X745. On
factual grounds, therefore, this part of the claim is dismissed.
On December 15, 1980 the Organization filed a time claim on behalf of
D. W. Strickland on the grounds that he was allegedly denied holiday work because
General Foreman E. D. Cody took a supply of lantern batteries to the Call Office.
As moving party in this case it is the responsibility of the Organization to
furnish burden of proof that such ;,ork had been the exclusive purview of the
craft seeking relief under the Agreement Rules cited. A search of the record
fails to uncover substantial evidence beyond request for relief and reference to
the Rules at bar. Given such lack of evidence the Board cannot but rule that
such "fails to meet the requirements of the burden of proof doctrine" (Award
20789; also 22517, 22685 and 20750).
The other claims were filed because various Carrier personnel, including
Car Foreman L. Meadows, Service Attendant I. Waters, Shift Car Inspector C. Case,
Car Inspector G. W. Grooms and General Foreman J. Warren had either put buckets
of coal or some ice on various Carrier cabs on the holidays in question in
violation of Agreement Rules cited in the foregoing. An analysis of the Scope
Rule of the Agreement at bar shows that it is a general type Rule and the Board
is here in accord with a prior Award on this property which held that the moving
party, when making reference to a Rule such as this, must show a "prepondenance
of...evidence that tradition, custom and practice on the property establishes
(this craft's) exclusive right to perform (the) work... (in question)" (Award
14075; See also Awards 19894, 19923 and 19339 inter alia). An analysis of the
record fails to produce such evidence. The Scope Rule in the instant case,
however, must also be analyzed in conjunction with the Rule covering holiday work
for the craft here filing claim. The Board can find nothing in the N-3 Agreement
addendum, by itself or in its relationship to the Scope Rule, which per _se
guarantees this craft prerogatives consistent with its claims in the instant
case. The Board must, therefore, resort to the record for guidance with respect
to "tradition, custom and practice" and/or other side-bar agreements or letters
of understanding
concerning the
Rules under scrutiny. Of particular interest in
this respect is the correspondence on property surrounding the claim of February
21, 1980 for O. Watley, the substance of which a fortiori applies also to the
other claims here under consideration. The record shows that in order, apparently,
to clarify Carrier practice under the Rules here in dispute a meeting was held
between the Carrier and the Organization in January of 1980. The intent of any
agreement arrived at on that date by the parties is at the center of the issues
here under discussion. Referring to this meeting Master Mechanic R.F. Lentz
wrote on April 7, 1980 to Division Chairman Z. K. Cole, who filed all the claims
under this Docket, that:
Docket Number CL-24853 Page 3
"...It was my belief that you and I agreed in this meeting that
in the future cab supply people wnuld be called on a holiday to supply
cabs that were placed in the cab track and if a situation should arise
where a cab on a train in the train yard needed a bucket of coal, a jug
of water, etc., that anyone could perform this duty. Hove ver, you told
me after submitting this claim that you did not agree to this..."
(Emphasis added).
The record shows that in all of the incidents leading to these claims the cabs
were not on the cab track, but were outbound cabooses.
Evidently, the Board is here confronted with conflicting evidence with
respect to the parties' agreement concerning the interpretation of their contract
and numerous precedents establish that under such conditions the Board may not
substitute its judgment for that of the Carrier nor set itself up as trier of
fact unless the record is subject to some impropriety. (Awards 21612; 22721;
23085). Such here is not the case. In view of this, therefore, and in view of
the lack of other evidence on the part of the moving party of probative value to
show exclusivity for the work in question under Agreement Rules A-1, N-3 "and
others" cited, the claims must be denied.
Further, Organization reference to Award 13137 in support is herein
defective because that Award does not address the distinction of supplying cabs
on the cab tracks versus in the train yard on holidays which is here the center
of controversy as noted above.
This Board's role, as is well known, is limited by the Railway Labor
Act to the interpretation of contracts in view of evidence presented to it. The
parties to the instant case would be letter served in the future if agreements
which are arrived at, such as that of January of 1980, were reduced to writing as
Letters of Understanding. Such a procedure could have assisted the parties to
have avoided the instant dispute in the first place.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties 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 .pct, 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.
Award Number 24811
Locket Number CL-24853 Page 4
A W A R D
Claims denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy ~ver - Executive Secretary
Dated at Chicago, Illinois this 30th day of April, 1984.
JJ
