Claimants G. A. Stahl and R. J. Fleig were employed by the Carrier as trackmen. Both of them were placed on layoff effective September 1, 1989, and they were on furlough at the time of this dispute.
On October 6, 1989, train No. 8091 operated as a work extra, between Enid and M.P. 474, dumping ballast. This train left Enid with 9 cars of ballast (air dumps), at 6:40 A.M. This train reported clear on their track warrant at M.P. 474, at 12:50 P.M.
The Carrier acknowledges that the ballast was unloaded by the Trainmaster and the Track Supervisor and the task was completed within two hours. The Carrier asserts that this work has never been the exclusive work of one particular craft. The Carrier also maintains that supervisors have performed this task in the past. The Carrier argues that unloading an air dump does not require that an employee follow along to control the flow of the ballast.
The Carrier further contends that the hours claimed are excessive. The Carrier asserts that only 10 to 15 minutes are required per car, which totals 2 hours to complete the unloading of the ballast rather than the 8 hours claimed by the Organization.
The Carrier alleges that Claimant Fleig was on vacation on the date in question, and was unavailable to work. Additionally, the Carrier maintains that it is not required to recall an employee from furlough for two hours's work. The Carrier asserts that this work was so minimal it cannot be construed as re-establishment of forces.
The Organization contends that the work of dumping ballast has been historically and customarily performed by the track forces. The organization maintains that the Claimants are fully qualified, and were available to work. The organization submitted written statements that this work has been exclusively performed by the Organization's members.
Moreover, the organization denies that 8 hours to perform the work in question is excessive. The organization believes that travel time from location to location should be included, as well as the amount of time required for the build-up of air pressure and for boarding the train. Form 1 Award No. 29538
Carrier's Exhibit 5, which was a "blind carbon copy" of the letter of denial sent to the Organization on January 22, 1990, contains that statement that:
The Carrier's Exhibit 7 is a signed statement dated April 2, 1990, from several Roadmasters, Managers, Track Supervisors, Engineers, and Conductors stating that they have dumped air cars. However, these statements are vague as to the time or place where they supposedly performed these tasks. Thus, little weight is given to this exhibit.
Rule 1 and Rule 5 of the Scope Rule, when read together, support the organization's contention that the work is reserved to the Claimants, and excludes the Trainmaster and the Track Supervisor, under this rule. Thus, when the work was performed by the Trainmaster and the Track Supervisor, the Agreement was violated.
However, there is reason to believe that the 8 hours claimed by the Organization is excessive. First, the train departed at 6:40 A.M. It was cleared at 12:50 P.M. This is a total of six hours and ten minutes. Based on this information, even if the Claimants are paid for the total time the train was in operation, it is less than the 8 hours claimed. Further, it appears that the crew performed other duties in addition to dumping the ballast. Based upon this information, it appears that the Carrier's contention that the dumping of the ballast took two hours to complete appears to be reasonable.
Although the Carrier points out that Claimant Fleig was on vacation through October 6, 1989, and was therefore unavailable, it is not apparent that he would have remained on his vacation if he had been offered the opportunity to perform the duties in question. The Carrier also argues that it was under no duty to recall Claimant Stahl from furlough. To support its position that the Claimants were entitled to file a claim, the organization accurately cites Third Division Award 18557 which states: Form 1 Award No. 29538
Based on the Board's review of the record, there is sufficient evidence to establish that a violation of the Agreement occurred on October 6, 1989, when Supervisors unloaded ballast when this work is within the scope of the Agreement. Each Claimant shall be entitled to two hours pay for this work.
CARRIER MEMBERS' DISSENT
TO
AWARD 29538, DOCKET PW-29720
(Referee DiLauro)
It is factual that Carrier operated a work extra on October 6, 1989 to dump ballast from nine air-dump cars along the side of the track. The activating levers were pulled by a trainmaster and a track supervisor and the work took approximately two hours to complete. Claimants were furloughed trackmen and one was observing assigned vacation on this date.
However, on the property, the only rules cited by the Organization were Rules 2, 3(b) and 79. These rules deal with establishing seniority, reserving work within a seniority district and recalling employees. Neither Rule 1 (scope) nor Rule 5, listing subdepartments, was raised or argued on the property. These rules, in addition to other rule citations, were first raised in the Organization's Submission to this Board. Despite the impropriety of such action and the fact that such was brought to the Majority's attention, it is gross error for this Majority to conclude that rules not joined on the property substantiate reservation of this work. None of the contract rules, cited by the Organization on the property (Rules 2, 3(b), 79) or in their Submission (Rules 3, 5, 45, 46, 47, 48, 88) can be quoted to substantiate the erroneous reservation of work concluded in this case.
Dissent to Award 29538
Since there is no rule support for the claim, the only other avenue is to substantiate the Organization's reservation of work is via exclusive practice. Carrier, in its initial denial of this claim, dated November 20, 1989, pointed out:
While the Majority categorizes Carrier's April 2, 1990 correspondence as "vague" it and Carrier's November 20, 1989 denial, noted above, substantiates that supervisory personnel "...dumped air dump ballast cars without track personnel on hand..." (Emphasis added)
Dissent to Award 29538Thus, there was no rebuttal during the year of on-property handling to the fact that the work involved here had been routinely done by other crafts as well as supervision. It is not until the time limits had expired and the organization had received an extension of time that the Organization offered their general listing and statement on October 22, 1990 asserting:
It is obvious that this document was an attempt to pad a barren record just before filing the matter with this Board.
In Third Division Award 20640, involving the same parties and agreements, this Board found:
Given the foregoing precedent and the facts of record, this claim should have been denied on the Organization's failure to prove that the complained of work was reserved to them by contract and/or practice.
Finally, neither Claimant was available for the two hours of work. Rule 79 deals with the recall of employees to positions. An
Dissent to Award 29538employee under the rule, after being notified "by mail or telegram" has up to 10 days to report. Obviously, neither Claimant under Rule 79 was available. Further, despite the dicta cited from Third Division Award 18557, Claimant Fleig was not aggrieved and he stands no right to compensation for work he could not do. However, in Award 18557, the "...essence of the claim by the organization is for Rule violation..." but in this matter there is no substantial evidence that pulling the handle on an air-dump car is reserved by contract or practice to this Organization.