AWARD N0. 1
 · (Case No. 1)
 i ,
 ~i.







                MISSOURI-KANSAS-TEXAS RAILROAD COMPANY


    STATEMENT OF CLAIM: Did Carrier's action in increasing the force on Section Gang

          _ No. 421, Waxahachie, Texas, instead of creating an extra gang

          to perform certain track maintenance work beginning on or about

          · June 2, 1969, violate any rule of the current agreement (Agree

          ment No. DP-357, effective February 1, 1928, with revisions to

          September 15, 1961); or, any other rule in effect between the

          parties at the time this dispute arose?

    __,..._ . y .__,. ... - _..___.During the course of the_ hearing Bred withdrew any claim for monetary , .... damages even though violation of the Agreement be found. Arbitration of the dispute was and is consequently confined to resolution on the merits of the claim.


    JURISDICTION:

    - Pursuant to Section 3, Second of the Railway Labor Act, herein called the Act, as amended; and, pursuant to the duly promulgated Rules of the National Mediation Board (NMB) (CPR TIT. 29, Ch. X, Part 1207, as published in F. R. Doc. 66-12451, filed November 16, 1966), the parties hereto, by agreement executed November 4, 1969, established this Board.


    OPINION OF BOARD:


              There. is no prejudicial conflict in the.facts. .,.

    ' At all times material herein Vicente Ramirez was Section Foreman,

    Section No. 421, headquarters Waxahachie, Texas. On May 27,,1969, General chairman

        · AWARD N0. 1

        PL 6 L4 -18 (Case No. 1)


    · C. L. Uptergrove received a communication from Ramirez that he had been advised by his superiors that: (1) a Tie Gang would be started on June 2, 1969, at Hillsboro, Texas; and (2) Ramirez would be in charge in addition to performing his duties on Section 421. Hillsboro, some 34 miles from Waxahachie, is in Section 425 (Note, not in Ramirez's Section 421). BMW and Ramirez complained about the assignment averring it was in violation of: (1) the Schedule Agreement; and (2) history, tradition and custom unilaterally established by Carrier in a letter to BMW's General Chairman Jones, dated November 9, 1955, from Carrier's then Vice President-Personnel,A. F. Winkel, which had been complied with from '1956 to the June 2, 1969 incident referred to above.


Ramirez, under threat of discipline for insubordination by his superior, complied. Ramirez reported at 8:00 A.M. each morning at his headquarters at Waxahachie from which point Carrier transported him to the site at Hillsboro where the Tie Gang was working and then transported him back to Waxahachie for termination of his day's employment at 5:00 P.M.. On the other hand, although the Tie Gang was assigned by Carrier to Section No. 421, they did not report at its headquarters, Waxahachie, at n starting and finishing time. Instead they reported directly to the job site where the machines were located and terminated their day's employment at such locations. On G June 10, 1969, the Tie Gang moved from the work area of Section 425 into the territory of Section 421. Ramirez.continued under specific orders to be the Foreman in charge. -The Tie Gang was abolished July 7.

 · On or about July 14, about the same number of Track Laborers was assigned
 headquarters at Waxahachie, Section 421, where they reported each morning at 8:00 A.M.
 and normally terminated their day at the same location at 5:00 P.M. This Gang was
 employed laying rail. It was referred to as the Rail Gang. It was abolished on
 AuB·_ist 19, 1969.
 · It is Carrier's position that the two Extra Gangs - - Tie and Rail
 were only additional employes assigned to Section 421; and there being no contractual
 ` 2 -
                                                $ AWARD YO. I

                                                          :

          fl _ (Case No. 1)


or legal bar the assignments were an inherent right of Carrier, subject only to its will as to number of employes required. It cites, in support, Third Division Award No. 11467 (June 6,. 1963) involving this property and the same parties, Schedule Agreement and Vice President-Personnel U'inkel's letter of November 9, 1955, which we quote, infra.

 In Award No. 11467, the Third Division stated that "There must be a violation of an Agreement between the parties before this hoard may sustain a claim."_ The principle enunciated by Carrier and the quoted finding from Award No. 11467 were for a long time the established case law of Railroad Adjustment Boards and sustained by the courts. The Supreme Court in the Gdnther v. San Die&o & Arizona E. R. Co., 382 U. S. 257, did however, in effect, reverse Award No. 11467. Cf. the Supreme Court's Opinion in Detrdit and Toledo Shore Line RR v. U.T.U. , 396 U.S. 142 (12/9/69) which has given greater legal significance to history, tradition and custom on a property absent formal contractual provisions.

 On November 9, 1955, Vice President-Personnel, Winkel wrote to the BM!NT's General Chairman.

                                    !'Dallas 2, Texas

              November 9, 1955 2 5 7 0 "Mr. E. Jones General Chairman Brotherhood of Maintenance of Way Employes Post Office Box 433 Denison, Texas Dear Sir:


          Maintenance of Vlay methods in effect on our property have become obsolete and will be modernized within the near future. The

        . length of sections vary and few, if any, machines are used to maintain

            the track except by the occasional extra gangs. Our section forces use

            the same type of hand tools for maintaining the track as was used in

            its original construction.


            The plan which we have adopted is similar to those in effect on some of the other railroads, and the following is a general outline

', of the program-

                      One One hundred eight of the 2 exisnr,sect~ons wtll

      . _ ,~ aboli.shed, and the rpmaininr. 220 snnrinns will hn


                              - 3 -

                        n ~1 '~ AWARD NO. 1

                        PL 47 q -78 (Case No. 1)


i.

        lengthened to take care of pa trolinr -snotti,na a _n

        1 miscellaneous work, including vard and branch line fiat, %3hich will continue to function along nresent lines.


            Zie insertions, out-of-face surfacing ofmain track and

        eavy, maintenance will be done by 7.7 mechanized ran2aas

        f -Q 3,


                Two tieing-Surf acing Gangs, each consisting of


                    1 Foreman

                    1 Assistant Foreman

                    1 Timekeeper

                  7 Machine Operators 19 Laborers.


        These two gangs will be used on programmed out-of-face tieing and surfacing on the following main lines:


                  Paola to Parsons

                  Parsons to Denison

                  Denison to Whitesboro

                  Denison to Hillsboro via Dallas

                  Ft. Worth to Granger

                  San Marcos to San Antonio


                Two Tie Ganns, each consisting


1 Foreman
 ___._.:_._____.._...._...__.___.._.._ ._.._._..._____..1.Timekeeper
 6 Machine Operators
 20 Laborers

          will be used on programmed cross tie insertion work on the following lines:


                Machens to Parsons

                Parsons to Oklahoma City

                Chase to Osage

                Whitesboro to Wichita Falls

                Waco to Stamford

                Granger to Austin

                _ Granger to Smithville

                Smithville to San Marcos

                · Smithville to Houston,


                Qeven Maintenance Ganns, each consistinc of


                    1 Foreman

                    7 Laborers


          equipped with one 4-man pneumatic tamper and equipment, will be assigned to the following territories:


_ 1 Machens to Franklin

                    - 4 -

          . PL a -q-18 AWARD NO. 1

          (Case No: 1)


                              2 Franklin to Parsons

      ' 3 Parsons to Oklahoma City

      . 4 Paola to Parsons and Parsons to Joplin

      5 Parsons to Muskogee '

                              6 Muskogee to Staley

              ' 7 Staley to Dallas

                                    8 Dallas to Hillsboro and Fort Worth to Bellmead

                                    9 Bellmead to Austin

                            10 Granger to llouston

                            11 Smithville to San Antonio


                    Two Maintenance Gangs assigned to the Northwestern Division will have the same setup as the above Maintenance Gangs, except that they will not be equipped with the tamper.


                  ' These Maintenance Gams t.,i]_1 >~a~ ~,eav

                    Maintenance work., and will be equipped with trucks for

                _ transportation purposes and trailer houses for lodging

                    accommodations.


                    It should be understood that the forces shown as comprising the above gangs may fluctuate from time to time.


                      As the seniority question and other matters are involved

                    ,_,. _,V.a _,_._ .,_ _ ._.^ .____y __ by these changes, I shall be glad to go over the matter with- ... . You:in conference at 10:00 A.M.,'November:21.. Vill.-.you please advise if this date is satisfactory.


                                      . , Yours very truly,

' /s/ A. F. Winkel."

            In a letter from Winkel to the General Chairman dated November 29, 1955,


Winkel stated:

            "You were advised in conference that it will be our nurnose

            ~,Q operate these gangs on a system basis as extra pangs in the manner

    ' in which extra gangs are now onerated. You c.:ere further advised tha

            the section ganvs would continue to operate and work in the same

            Manner as they are now doing and have done in the past; that the extra

    .a r!,an foreman will have re.sponsibilitv for work nerformed under his

            supervision as now, and that section foreman will have resnonsibilitv

            for his section as now. * *" (Emphasis supplied)

                                    PLO /a -7 g AWARD N0. 1

                                                (Case No. 1)


        Relative to seniority rights and duties of Section Foremen, we quote


from p: 12 of Third Division Award No. 3627 (July 1947) this property:

              "OPINION OF BOARD: By Rule 2 of Section 3 foremen hold

        seniority rights to new positions or vacancies within a Suncrin- _

        tendent's district. Such rights are exercised by bidding for

        positions as foreman of a designated section, identified by number,

        and the assignment bulletin assigns him to that specific section.

        When so assigned, his work is confined to his assigned section,

        except in case of emergencv, when he and his gang may be used on

        another section where the foreman, and his gang, assigned to the

        section where the emergency exists, are employed and on duty.


        "The section laborers of the section to which a foreman is assigned comprise the Bang for that foreman.


                "Rule 3 of Article 3 of the Agreement, reading:


                      'Seniority rights of laborers as such,


will be restricted to their respective gangs
~~Y\

 `

 "Since the work of the foreman and the gang is confined
 _nv to the section, except in emergencies, and since the seniority of

 the laborers is confined to the gang, the terms 'sections' and
 'gangs' become synonymous when used with respect to seniority.
                "When, therefore, a gang is, by Carrier direction, assigned " ---_

    work on a section other than that bulletined to its foreman, it is

    . invading the senioritv district of the gang of the foreman to whom

    was assigned the section so invaded. And the foreman not onlv goes

    outside his working district, fixed by his assignment, and by

    seniority rights of his gang, but he also violates the terms of the

    assignment of the foreman upon whose section he encroaches." (Emphasis

    supplied)

    Introduced in evidence in this case for our consideration are: (1) Mediation

Agreement Case A-5987; (2) Decision in Arbitration Board No. 298; and (3) The National
 Agreement of February 7, 1965.

 Article I - PRIOR CONSULTATION of Mediation Agreement Case No. A-5987 provides that in the event a carrier decides to effect a material change in work methods involving employes covered by the rules of the collective agreement of the organization
 PLQ) LI-78 AWARD N0. 1
 (Case No. 1)

 there will be notification to and consultation between Carrier and the General Chairman
 within-prescribed time limits; "This Article does not contain penalty pro
 visions and it does not require that agreements must be reached as the right of the
 carrier to make changes in work methods . . ." .

 Arbitration Board Award No. 298 in Paragraph I thereof concerns employees who are employed in a type of service, _the nature of which recn>>arly requires them tbrpugllout tllcir work %:,,eek to live aleav from hnme in camn'cars. camps, hi lr~t;,nv triflers hntalc or mntels. Paragraph II concerns employees lahn are renuj=d in lie C0113_1se of their empln,mon to be away from their headquarters point as designated by carrier.

 The February 7, 1965 Agreement is not applicable in the case before us.

 The issue in this case narrows as to whether Carrier violated the Scope Rule. ale is, general in nature. For Organization to prevail it has the burden of

 proving that: (1) Carrier's assignment of the work involved to a Section Gang violated the Agreement; and ,(2) requiring Section Foreman Ramirez to'supervise'work'on other - than_his assigned Section, in the absence of an emergency, violated the Agreement.

 Issue (2) was found in the affirmative in Award No. 3627, supra. We concur in that finding.

 Evidence of the duties historically and customarily performed by a Section Gang, including the Foreman, are evidenced in the first indented paragraph of Winkel's November 9, 1955 letter and the excerpt quoted from his letter of November 29, 1955; supra; and Award No. 3627. Carrier's unilateral enlargement of the respective duties violates the Scope Rule.

 We find no need to make findings as to rates of pay, other emoluments and
    ' PL j3 N -1c~ AWARD N0. 1

                                                Cl (Case No. 1)


      conditions of'work attaching to employees assigned to the work here involved.


      These flow from the assignment as prescribed in Schedule Agreement, Mediation


      Agreement Case A-5987 and Decision in Arbitration Award No. 298.


                              A W A R D


                      As per Opinion of the Board, supra.


                              0 R D E R


                      Carrier is hereby ordered to make effective

                      Award No. 1, supra, made by Public Law Board

                _ No. 478 as of the date of its execution shown

                      below .


... 1 _ ~ __.,n _ __ ...... -,_ . __ .,_ J o n fl. Do Chairman .. ..... _.,._., .__. _.__.__,._._
                              Neutral Member


                        i


          ~l~h~ . J N ~7~-M/

      Fred R. Carroll, Carrier ,lember A. -J unningtiam, E~ 1 yee Member


Dated at Dallas, Texas, the 2nd day of September, 1970.