PUBLIC LAZY BOARD N0.
164
Parties ) United Transportation Union (T)
to )
Dispute ) Union Pacific Railroad Company-Eastern District
Statement of ClaM: Claims for various Ogden brakemen account not
used for flagging purposes on dates in July, August and September
1965,
for
150
miles each account not called to perform flagging
service.
Findines: The Parties agree that the award in this case will require
like awards in Cases Nos. 28 through 37, because the construction
site and the work involved thereat are the same for all eleven
cases; i.e., only the claimants and their claim dates differ from
case to case.
For each such case the Parties are also agreed on the
correct claimants and claim dates among those originally submitted;
it is therefore unnecessary that said correct items be set forth in
the award for any of this group of cases.
There is a third area of agreement. For each of the eleven
cases the Organization concedes that certain of the claims that are
correct as to date and as to the person who is the claimant have no
merit under the facts and under the application thereto of the
principle set forth in this Board's Award No. 1. These no-merit,
otherwise correct claims embrace two kinds of flagging service performed by maintenance of way employees and earlier (on the property)
challenged by the employes: (1> the red-flagging done about a mile
in each direction from the construction site; and (2) the yellowflagging done at said site by the middle section hand among three
such men whom Carrier had distributed rather evenly along the 1500
foot right of way adjacent to and on the length of said site. In
other words, among the claims properly before the Board the
Organization is now pressing only those related to the flagging of the
two yellow-flag "end-men" in respect to the section hands who did
all the flagging in these cases.
The reason for this concession is simply this: The
Organization agrees that the core work of the section hand red-flaggers
and of the section hand middle yellow-flagger was or may well have
been not said flagging but true section hand work. This means that
the Organization makes no such concession for the end-men yellowflaggers; in Petitioner's view the core service done by each section
hand in each such pair was flagging and not maintenance of way work,
belonging therefore to a train service claimant.
4
S'4#1 /o/
Given all the above, the issue herein is again one of fact
and fact interpretation from the weight of the evidence of record.
In respect thereto, the Board finds as follows: (1) During the whole
period covered by the correct claims in all these eleven cases a
portion of a hillside near Ogden was being removed by an outside
contractor for the construction of part of an interstate car freeway
along Carrier's two-track main line. A used old two-lane highway ran
along said tracks. (2) The construction work involved heavy blasting
in granite rock two or three times a week. At blast time the
red-flaggers stopped trains, if any such were then east or west bound,
then told them to proceed to the point where the yellow-flagging
end-men were located, the latter stopping the trains or letting them
proceed slowly. (3) The blasting often if not always caused large
amounts of rock and debris to cover both main tracks, which then had
to be removed by the contractor's equipment and by the section gangs.
The blasting also loosened much rock, which did not immediately
plunge down on to the tracks but over considerable periods took its
own good time in getting loose and descending.
(4)
Under these
conditions Carrier had sizeable section gangs working on the 6 a.m. -
2 p.m, and 2 p m. - 10 p .m. shifts and had three section hands on
the 10 p.m. - 6 a.m. shift. (5) The latter trio did patrolling,
rock removing, track-observing, and yellow flagging, occasionally
calling for additional men when necessary. The available data for
these "graveyard" men do not permit a breakdown into flagging hours
versus hours spent in section hand work. The best that the Board
can do is to infer that (a) on that shift there were not so many
trains as to cause most of the end-men's time to be spent in
flagging and (b) between trains they assisted in performing
patrolling, rock removing, and track checking. The Board is persuaded
on balance that the work done by these graveyard end-men was not
flagging in the "core" sense but was incidental to their maintenance
of way service. (c) As to the first and second shifts, the evidence
is in conflict. The able local chairman who testified for Petitioner
at the hearing stated that (a) he spent some eight or nine days
observing daylight operations in the area for periods ranging fram
about 0.5 to 4.0 hours, and (b) during said observations the two
end-men did nothing but yellow-flag and hang around the shanties
built for them by Carrier. The equally able engineering
representative of Carrier testified, from conversations with
responsible Carrier officials in the field, that during betweentrain periods the "yellow end-men" most certainly did not waste
Carrier's money by standing around but rejoined their section gangs
of "dancers", returning to flag only when the train lineup (list)
or the motor car indicator showed a train to be on the approach.
Other evidence in the form of letters from train service employees,
PLG I Io
L!
AWARD
N0. 27
Case
No. 27
engineers, and a section hand was introduced, as well as snapshots
taken by the local chairman. The Board can of course pick we11known legal and statistical flaws (hearsay, relevance, sampling, etc.,)
in all these items of evidence. Nevertheless, from the mass thereof
one valid, reasonable impression does emerge: The weight of evidence
does not allow a firm finding that the first and second shift
"yellow end-men" devoted so much of their times and energies to
flagging that same constituted the cores of their total services.
Given the above findings for each of the three shifts
involved in the blasting and non-blasting phases of the work covered
by the claims period, the Board is compelled now finally to rule
that the claims herein do not justify a sustaining award.
AWARD: Claim denied.
PUBLIC LAW BOARD N0. 164
Carroll R, a her, ,.
Chairman and Neutl%l 1-.ember
Cl
. Hue.
Ienny, Carrier Member C. .,Christiansen, Employe nember
Omaha, Nebraska
I-larch 4, 1969