Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27569
THIRD DIVISION Docket No. CL-27282
88-3-86-3-380
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka 6 Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10106) that:
1. Carrier violated the intent and provisions of the current Clerks'
Agreement at Pueblo, Colorado by improperly using Weicker Transfer Company to
adjust and reband six carloads of poles, and
2. Carrier shall now pay Mr. G. Fernandez four hours thirty minutes
pay, time and one-half Claim Clerk rate for March 30, 1985, and
3. Upon expiration of 60 days from the original date of submission,
Carrier shall also pay 15% per
annum interest
on the amounts claimed."
FINDINGS:
The Third 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 employes 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.
On Saturday, March 30, 1985, a Burlington Northern train crew bad
ordered six flat cars loaded with poles at the Pueblo, Colorado, Yard which is
manned only
by Carrier employees. Carrier arranged for the adjusting and
rebanding to be done by a Weicker Transfer Company employee who apparently
used Carrier owned equipment.
On May 20, 1985, the
Organization presented
its Claim, stating:
"Mr. G. Fernandez, with a seniority date of July
29, 1947, is the regularly assigned occupant of Claim
Clerk position No. 6076 which is regularly assigned
Form 1 Award No. 27569
Page 2 Docket No. CL-27282
88-3-86-3-380
7:00 A.M. to 3:00 P.M. daily with assigned rest days
of Saturday and Sunday. Claimant Fernandez regular
ly and normally adjusts and re-bands carloads such
as those involved in the instant case during his reg
ular working hours. Weicker Transfer Company was call
ed to adjust and reband the six carloads at approxi
mately 8:00 P.M. Saturday, March 30, 1985 instead of
Mr. Fernandez.
POSITION OF EMPLOYES:
It is the position of the employee that Carrier
violated the intent and provisions of the current
Clerks' Agreement by failing and/or refusing to pro
perly call Mr. G. Fernandez to perform overtime work
of adjusting and re-banding six carloads of poles.
Weicker Transfer Company was called to perform this
service at approximately 8:00 P.M., Saturday, March
30, 1985. Weicker employes worked four hours and
thirty minutes adjusting and rebanding TTX 476340 -
TTX 157321 - TTX 476951 - TTX 100970 - JTTX 907700 -
JTTX 501799.
Claimant Fernandez was at home and available, but
Carrier chose to call Weicker Transfer Company to per
form the work that Claimant Fernandez should have been
called to perform at 8:00 P.M., March 30, 1985.
While we rely upon the entire agreement as sup
port for this claim, your attention is specifically
directed to Rules, 1, 2, 4, 5, 6, 11, 32 and 59."
Pertinent portions of the Rules cited as relied upon by the Organization include the following:<
"RULE 1--SCOPE
1-A. These rules shall govern the hours, compensation, and working conditions of all employes en
in the work of the craft or class of Clerical, Office,
Station, Storehouse, Tower and Telegraph Service Employes as such craft is, or may be, defined by th
National Mediation Board. Officers or employes not
covered by this Agreement shall not be permitted to
perform any work or function belonging to the craft or
class here represented which is not directly and immediately linked to and in integral part of their
signatory hereto.
1-B. Positions outlined below are generally representative of those within the craft or class:
Form 1 Award No. 27569
Page 3 Docket No. CL-27282
88-3-86-3-380
Clerical workers and/or machine operators, station
agents, manager-wire chiefs, wire chiefs, assistant
wire chiefs, student wire chiefs, communication traf
fic controllers, towermen, levermen, block oper
ators, car distributors, train order clerks, draw
bridgetenders and boat dispatchers.
Other office and station employes such as assorters,
office boys, messengers, station helpers, baggage
and parcel room employes, train and engine crew call
ers, switchboard operators and oerators (sic) of cer
tain office or station appliances.
Elevator operators, janitors, station, platform, ware
house, transfer, storeroom, stock room material han
dler or truckers, and other similarly employes."
2-E. Positions or work within Rule 1-SCOPE of this
Agreement belong to the employes covered thereby and nothing in this Agreement shall be construed to
removal of such positions or work from the application
of the rules of the agreement.
2-F. When a position covered by this Agreement is
abolished, the work assigned to same which remains to be
performed will be reassigned to other positions covered
by this Agreement, unless such reassignment of work would
infringe upon the rights of other employes."
"Work on Days Not Part of Any Assignment
32-E. Where work is required by the Carrier to be
performed on a day which is not a part of any assignment,
it may be performed by the senior qualified and available
off-in-force-reduction employe who will otherwise not have
40 hours of work that week; in all other cases by the regular employe.
"32-F. Service rendered by employes on their assigned
rest days shall be paid for under Rule 32-1, unless relieving an employe assigned to work on such da
case they will be paid the same as such assigned employe
would be paid, subject to the provisions of Rule 43, unless the employes working such day shall have
service on five previous days in his work week, in which
event he shall be paid at the rate of time and one-half."
Form 1 Award
No. 27569
Page 4 Docket
No. CL-27282
88-3-86-3-380
"Calls
32-1.
For continous service after regular working
hours, employes will be paid time and one-half on the
actual minute basis. Employes notified or called to
perform work not continuous with the regular work period
will be allowed a minimum of three hours for two hours
work or less, and if held on duty in excess of two hours,
time and one-half will be allowed on the minute basis."
On June
25, 1985,
the Superintendent declined the Claim. On June
29,
1985,
the organization notified the Superintendent of their rejection of his
decision because:
"The fact still remains that Weicker Transfer Company
was used to perform work normally performed by Mr.
Fernandez within his regular assignment."
By letter of August
12, 1985,
the Organization asserted:
"Claimant G. Fernandez, with a seniority date of July
29, 1947,
on the Colorado Division Station Department
Seniority District, is the regular assigned occupant
of Claim Clerk Position
No. 6067,
at Pueblo, Colorado
which is assigned to work
7:00
a.m. to
3:00
p.m. Monday
through Friday with rest days of Saturday and Sunday.
On Saturday, March
30, 1985,
at
8:00
p.m., Carrier
determined there was a need to adjust and re-band TTX
476340, 157321, 476951, 100970,
JTTX
907700
and
501799,
six carloads of poles; however, instead of properly
calling Claimant Fernandez who normally performs the
work involved, Carrier improperly required and/or permitted Weicker Transfer Company to perform the
work here involved.
Claimant Fernandez was available and qualified to perform the service here involved but was deni
or opportunity to do so.
While we reply upon the entire Agreement as support
for our claim, your attention is specifically directed
to Rules 1,
2, 4, 5, 6, 8, 11, 32, 47,
and
59."
On September
30, 1985,
the Carrier responded that no outside contractor performed any work reserved exclusively to cler
Rule is general and separate from Rule
2,
exclusivity must be proved. The
Carrier further contended the rebanding was for the benefit of the shipper and
done at its expense and that no proof was offered that the Claimant was available.
Form 1 Award No. 27569
Page 5 Docket No. CL-27282
88-3-86-3-380
Carrier has submitted lists alleging numerous occasions on which
Weicker employees were used to perform similar work. It is unclear whether
this was presented to the organization during handling on the property but the
Organization admits previous use of Weicker and asserts that in such instances
Claimant worked along with the Weicker people.
This was the posture of the case as it reached this Board.
Prior Third Division Awards dealing with Rule 1 and 2 and on this
property have held Rule 2-E and 2-F do not eliminate the need for a showing of
exclusivity when work assignments are challenged. See Third Division Awards
25695 and 25571.
We do not disagree with those Awards. Nevertheless numerous Third
Division Awards have held the exclusivity doctrine does not apply in Work on
Unassigned Day rules situations. As was held in Third Division Award 19267:
"The Carrier contends the Organization did not prove
that Car Distributors have the exclusive right, by
custom and practice, to the disputed work. We would
respond to that by saying that Rule 25(j), the Work
on Unassigned Day Rule, is specific and prevails over
any general rule, including the Scope Rule (See Award
18245)."
In Third Division Award 19439 the Board stated:
"The issue of work on unassigned days has been before
this Division on numerous occasions before. See for
example, Awards 12957, 18245, 18856 and 19039 upholding the regular incumbents right to the work on
This Board has consistently refused to consider matters and arguments
not raised on the property. The question is whether the doctrine enunicated
in the Awards last cited are applicable given the facts and arguments raised
on the property in this case.
We believe it is clear from the record that the Claim arose out of an
alleged failure to call Claimant for work on his unassigned day. The original
Claim stressed Claimant was on his rest day and was "home and available."
Rule 32 was cited as one upon which the Organization relied. In its letter of
August 12, 1985, the Organization reiterated that Claimant was on a rest day
and "available and qualified to perform the service . . . but was denied the
right or opportunity to do so." Rule 32 was again cited.
Form 1 Award No. 27569
Page 6 Docket No. CL-27282
88-3-86-3-380
Thus this is not a situation in which new facts are attempted to be
raised or new arguments made. The Claim's contention from its inception has
been failure to call the employee on his unassigned day. It is true that
cases holding that exclusivity is not a factor in Work on Unassigned Day situations were not cited o
us from a proper application of Board doctrine where, as here, the Rules and
the facts have been extensively argued on the property. We are faced here
with a proper application of Board principles. It is our responsibility to
apply the legal principles which flow from the facts and arguments developed
on the property. Dismissal of this Claim would require us to adopt Carrier's
position that it is necessary to prove exclusivity in these situations. This
we are unable to do if we are to follow precedent.
Carrier at no time denied that Claimant regularly does the type of
work involved, but rather argued the question of exclusivity.
AB
we believe
the record establishes that the Claimant regularly does this work and as we do
not agree the work was not for the benefit of Carrier we shall sustain the
Claim. Claimant is to be paid at the rate described in Rule 32-F, but find no
Agreement basis for the requirement of interest.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL
RAILROAD ADJUSTMENT
BOARD
By Order of Third Division
Attest:
Nancy J. 40"r - Executive Secretary
Dated at Chicago, Illinois, this 29th day of September 1988.
CARRIER MEMBERS' DISSENT
TO
AWARD 27569, DOCKET CL-27282
(Referee Cloney)
The Award is predicated upon a finding that the Organization
based its claim upon two separate Agreement provisions: Rule 2
and Rule 32. The fact is, however, that a review of the
on-property handling of the dispute shows that Rule 32 was not
argued at all. To be sure it is mentioned in the organization's
initial Claim letter, along with Rules 1, 2, 4, 5, 6, 11, and 59
and mentioned again in the appeal letter, along with Rules 1, 2,
4, 5, 6, 8, 11, 47, and 59, but that is the extent to which it is'
even mentioned. The only Rule that was argued was Rule 2.
Indeed, the term "unassigned day rule" cannot even be found
in the handling on the property. Rule 32 is entitled "Overtime
and Calls," and consists of 14 different sections, most of which
have nothing to do with each other. It is not until the
Submission stage that we are informed which portions of Rule 32
are alleged to be involved.
The Carrier obviously never understood the Organization to
be arguing Rule 32 as an independent basis for the Claim as it
never even mentions the Rule in the handling of the Claim on the
property or even in its Submission. The fact is that we have no
idea what the Carrier's position would have been if a Rule 32
argument had been raised.
If Rule 32 was intended to be a basis for the Claim, the
obvious place to have made such fact known was the organization's
appeal letter of August 12, 1985. It did not do so. Thus, in
Dissent to Award 27569
Page 2
its appeal letter, the Organization's General Chairman wrote,
under the heading "Position of Employes":
"While we rely upon the entire Agreement as support
for our claim, your attention is specifically directed
to Rules 1, 2, 4, 5, 6, 8, 11, 32, 47, and 59.
"Rule 2-E of the Agreement reads:
Ir * *0
"When Carrier agreed to this rule, to be effective
January 1, 1980, it was enjoined, by agreement, from
removing from clerical positions and allowing an
employe not covered by the Agreement to perform that
work."
It is noteworthy that the Majority while quoting from the
letter at length, does so from the portion of the letter entitled
"Statement of Facts," not from the portion headed "Position of
Employes." The issue in this case was not when the alleged
violation occurred, there was no dispute that the work was
performed on the Claimant's unassigned day. The only contested
issue was whether the use of the outside contractor violated the
Agreement, and, with respect to this issue, the only argument
made by the Organization was that the Carrier's action violated
Rule 2.
In summary, the Majority decision is not based upon a
consideration of the various arguments of the parties concerning
the efficacy of Rule 32 as neither side set forth its position on
the subject in its on the property handling of the dispute. Its
precedent value, accordingly, is worthless.
Dissent to Award 27569
Page 3
M. W. F NGERMUT R . HI
M C. LESNIK P. V. VARGA
i
. E. YOST
LABOR MEMBER'S RESPONSE
TO
CARRIER'S DISSENT OF AWARD 27569 (DOCKET CL-27282)
The Minority Dissent continues to express it's desire to
avoid the facts as set forth on the property and the governing
rule of the Agreement. The applicable portion of Rule 32-E
States:
"Where work is required by the Carrier to be performed
on a day which is not a part of any assignment, it may
be performed by the senior qualified and available offin-force-reduction employe who will otherwise
40 hours of work that week; in all other cases by the
regular employe."
The Majority Opinion correctly pointed out that no less
than four (4) times while the Claim was on the property, the
organization advised the Carrier that the Claimant was entitled
to do the work in dispute because he normally performed the work
and he was on his rest days.
The Carrier now cries foul on the basis that they only partially
defended their position. The Claim was very clear the organization
stated that the Carrier violated Rule 32-E. For the Minority to
suggest that the Carrier did not understand the issues is to engage in
self-delusion. We would refer them to the Carriers Letter of
September 30, 1985, (Employes Exhibit "E" pg. 5) wherein the Asst.
to Vice President of Labor Relations wrote the General Chairman.
In that letter he made nine (9) different arguments why he felt the
Claim should be denied. Arguments Eight (8) and Nine (9) pertain to
the Claimant's availability and the fact that he was on his rest
ays.
The Carrier was clearly defending against Rule 32-E. Because
they then chose not to pursue that argument in their Submission
before this Tribunal does not mean they did not understand the
issues, but instead infers that they knew all to well that their
arguments concerning Rule 32-E were incorrect. Rule 32-E was set
forth on the property as one of the rules which was violated by the
Carrier, to argue otherwise is contrary to the facts.
The Minority opinion in it's effort to argue that Award 27569
is not precedential has simply decided to ignor the facts and that
long line Awards which have stated that in disputes involving work
on unassigned days it is not necessary to prove exclusivity. The
organization need only show that the regular incumbent normally
does the work. (See Third Division Awards 12957, 18245, 18856,
19039, 19267, 19439, 20187, 20556, 26318 to name just a few).
Contrary to the Minority Dissent Award 27569 is precedential
and should resolve this issue on the property henceforth. With a
slight touch of "sour grapes" the Minority simply continues to
ignore the factual record which sustained the Organization's
position. We disagree with the Carrier Member's Dissent.
William R. Miller
Labor Member
October 17, 1988
Date
Award 27569 (Docket CL-27282)
-2-
CARRIER MEMBERS' REPLY
TO
LABOR MEMBER'S RESPONSE
TO
AWARD 27569, DOCKET CL-27282
(Referee Cloney)
The Organization's Response states that "(t)he Claim was
very clear the Organization stated the Carrier violated Rule
32-E." We appreciate that statement because it very clearly
delineates the opposing views with respect to the validity of
this Award. Should another dispute arise in which the
Organization claims a violation of "Rule 32E," the Organization
will have every opportunity to demonstrate that the words "Rule
32-E" appeared, anywhere, in the handling of this dispute on the
property. Being unable to do so, and there is no doubt that it
will be unable to do so, the next referee will have no choice but
to dismiss the precedential affect of this Award.
With respect to the "slight touch of 'sour grapes,'" we must
confess that when we are confronted with an Award that decides a
dispute on the basis of an issue that was never raised on the
property, resulting in the Carrier never even having the
opportunity to state its position with respect to such issue, it
does tend to leave a sour taste in one's mouth.
P4. W. FIN ERH R. L. HICKS
M. C.,LESNIK P. V. VA
YOST