Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. ?8684
THIRD DIVISION Docket No. KW-28726
91-3-89-3-108
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (CSX Transportation, Inc. (formerly The Chesapeake ( and Ohio Railway Company)

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it assigned Foreman R. Peppi instead of furloughed Trackman T. Burchett to perform trackman's work in the vicinity of Shelby, Kentucky on a regular daily basis beginning November 30, 1987 and continuing through February 12, 1988 [System File C-TC-2568/12(88-461) COS].

(2) As a consequence of the aforesaid violation, Mr. T. Burchett shall be allowed compensation at the applicable trackman's rate for all straight time and overtime hours worked by Mr. Peppi beginning November 30, 1987 and continuing through February 12, 1988."

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 Boafd'Ras jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The Claimant is a Trackman who was In furlough status at the time this Claim was initiated., The Claim is that a Foreman was assigned Trackman's work for the period between November 30, 1987, and February 12, 1988. Rule 3 establishes separate seniority rosters for Track Foremen and Trackmen.

Of central importance here is a letter from the Director of Labor Relations, agreed to by the General Chairman, dated September 9, 1987, and reading as follows:
Form 1 Award No. 28684
Page 2 Docket No. MW-28726
91-3-89-3-108
"This refers to our conference of September 9, 1987,
in which we discussed the application of that portion
of the Memorandum Agreement of February 20, 1986, per
taining to Track Foremen and B&B Foremen participating
in work of their forces.
The February 20, 1986 Agreement reads, in part, as
follows:
'Foreman will participate in the work of the
force to which they are assigned to the extent
that this does not conflict with their foreman
duties; however, they will continue to have com
plete control of their force.'





The basis of the Claim is found in the statement provided by a Track Foreman, which stated as follows:















Form 1 Award No. 28684
Page 3 Docket No. MW-28726
91-3-89-3-108
You said Mr. Layne said he had discussed these
responsibilities with me on several occasions. 'This
is not true.' The only type of communication we had
about this matter was not discussed at a11, he simply
stated to me that I would work as a full time laborer,
no discussion took place."

Throughout the claims handling procedure, the Carrier did not refute this allegation, except to state that "the Roadmaster had never instructed )the Foreman) to work as a laborer eight hours a day."

The right of the Carrier to permit Foreman "to assist in unusual situations or sporadically when needed" is not disputed. In this instance, however, the record i4dicates the use of a Foreman to a substantially greater extent. This is supported by the unrefuted allegation of the Foreman being required to work short-handed as to his crew complement.






                            By Order of Third Division


Attest Z_",

      Nancy J. ? v - Executive Secretary


Dated at Chicago, LLLLnois, this 28th day of February 1991.

DISSENT OF CARRIER MEMBERS

TO

AWARD 28684, DOCKET MW-28726

(Referee Marx)


The Majority erred in sustaining the claim in Award 28684. The February 20, 1986 agreement is crystal clear that "Foremen will participate in the work of the force to which they are assigned to the extent that this does not conflict with their foreman duties; however, they will continue to have complete control of their force."
The Majority based its decision on a totally unsupported and selfserving letter of the track foreman Majority, Carrier did refute it handling on the property. The Carrier satisfied the burden of proof in this respect when it furnished a statement to the Organization from the Roadmaster advising that the foreman had not been instructed to perform trackman's work as he alleged. Furthermore, the statement of the track foreman is obviously not evidence that a foreman performed work of a trackman for eight hours a day during the period covered by the claim. There is absolutely no evidence in the record that the foreman was relieved of any of his responsibilities as a foreman. Those responsibilities, among many others, include.pbtaining track time when needed, maintaining payrolls and supervising the work of subordinate employees. We reiterate, there is no evidence that the foreman did not perform all the foreman's duties assigned to him and that the alleged work in
ug estion, whatever that may have been, co-nflicted with the required duties of
the foreman. _

The evidence upon which the Majority relied was simply a vague assertion by the track foreman in what he erroneously alleges to be a general practice
CMs' Dissent to Award 28684
Page 2

of sending him and another employee out to perform trackman's duties. It is quite obvious he is simply campaigning for an additional employee on the work force by the use of the claims and appeals route rather than by negotiations. That route is not the proper route to follow in this effort.
The foreman's statement was refuted by the Carrier in the handling on the property when it furnished the Organization with the statement of the Roadmaster wherein tkte roadmaster clearly stated that, "At no time has R. Peppi been instructed by Roadmaster Roger Layne to work a5 a laborer (8) hours a day." That the statement of the track foreman and the roadmaster conflicted is evident and, therefore, the track foreman's statement cannot be considered credible evidence to support the Organization's asserted violation of the agreement.
The decision of the Majority dilutes a negotiated agreement and changes the meaning and interpretation thereof. The Majority commented concerning the Carrier's right to permit a foreman "to assist in unusual situations or sporadically when needed," and completely ignored the language in the letter of interpretation, which completed the sentence and states, " ...it being the intent of the parties that employees assigned Foreman positions will be productive when not otherwise engaged in the performance of their Foreman's duties." '
The Organization did not meet its burden of proof in this case. The organization did not prove that the foreman worked as a trackman for eight hours a day as alleged. The track foreman's statement is most general and
CMs' Dissent to Award 28684
Page 3

vague and certainly cannot be considered proper support for this claim. Award 28684 is palpably erroneous and, therefore, we vigorously dissent to same.

                              . Yost


                            l

                            I&Tdi 103rm OR" ff

                            M. W. Finger ut


                            R. L. Hicks


                            M. C. Lesnik


                            P. V. Varga