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.'
It is not the intent of the foregoing that the
Foremen replace Trackmen or B&B Mechanics. They
are to only assist in unusual situations or
sporadically when needed, it being the intent of
the parties that employees assigned Foreman positions will be productive when not otherwise engaged
If the foregoing correctly reflects our understanding of this matter will you please indicate
below."
The basis of the Claim is found in the statement provided by a Track
Foreman, which stated as follows:
"I filed an agrierance (sic) sometime ago about
foremans (sic) being put into certain situations
to where he is being forced to labor, such as
sending me to a job with one men; where it required three or more men to do the job.
Sonny Walters also filed a statement that Roger
Layne said that all of his foremen would labor as
long as they worked at Shelby.
r
Sonny Walters 6 I have been sent out with only
one labor on more than many occasions to gauge
track, surface track and put in ties, while the
rest of our crew was sent elsewhere.
Mr. Rahmes, should know that one man can't do
this type of work without the assistance of a full
time working laborer.
I would appreciate it if Mr. Rahmes would define
for me what assist means.
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.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
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