Y 7
SPECIAL BOARD OF ADJUSTMENT NO. 570
Established Under
Agreement of September 25, 1964
SBA No. 570
Award No.
V7
Case No. 972
! Brotherhood of Railway Carmen of the
( United States and Canada
Parties to Dispute: ! and
!
( The Baltimore and Ohio Railroad Company
STATEMENT OF THE CLAIM:
"1. That the Baltimore & Ohio Railroad Company violated the
contractual rights of claimants herein when on the date
°" of January 3, 1984 through February 13, 1984, carrier
allowed employes of an outside concern, Raleigh Junk
Company out of Huntington, West Virginia, to come onto
the property of Benwood, West Virginia for the purpose
of dismantling freight cars, in violation of Agreement
Rules 50 and 138,
and Article
II-Subcontracting- of the
September 25, 1964 Agreement, as amended effective
January 12, 1976.
2. That accordingly, carrier be ordered to compensate and
make whole all claimants herein for all time lost as a
result of such violations as follows: Claimants:
R.O: Wood - January 3, 4, 5, 6, 9, 10,11, 12, 13, 16,
17, 18, 19, 20, 23, 24, 25, 26,27, 30 and 31;
J.J. Wagner - January 3, 4, 5 and 6;
P.I. Brown - January 9, 10, 11, 12, 1
3
16, 17, 18,
19, 20, 23, 24, 25, 26, 27, 30 and 31.;
each claimant eight (8) hours per day at the carmen's
straight time rate cf pay.
R.O. Wood - February 1, 2, 3, 6, 7, 10 and 13;
SBA No. 570
Award No. S1
Case No. 972
Page No. 2
P.I. Brown - February 1, 2, 3, 6, 7, 8, 9, 10 and 13,
1984;
each claimant eight (8) hours per day at the carmen's
straight time rate of pay."
FINDINGS:
The relevant facts of this claim may be briefly stated. In
the fall of 1983, Carrier entered into an agreement with the
Raleigh Junk Company in Charleston, West Virginia for the sale of
thirteen second-hand or damaged freight cars designated by the
Carrier as beyond repair. A copy of the sales order, Number
4535, was attached as Carrier's Exhibit "A", and states:
..13 wrecked and damaged freight cars located at
Benwood, WV. See the attached sheets* for details,
F.O.B. C & O/B & O tracks, any junction - scrap only -
second hand material - collect from origin
x The attached sheets referred to hereinabove were not
supplied to the Organization during the handling of
this dispute on the property.
e
As a result of this action, the
Organization filed
a claim
contending that members of its craft should have been used to
perform the work of dismantling and scrapping freight cars.
Carrier denied the claim and since the matter could not be
resolved on the property, it is now before the Board for
adjudication.
SBA No. 570
Award No.
j/7
Case No. 972
Page No. 3
The Organization maintains that Carrier's failure to assign
the disputed work to carmen violated the Agreement, specifically
Rules 50 and 138, and Article II, which relates to
subcontracting. Rule 138 is the Carmen's Classification of Work
Rule, which reads in pertinent part as follows:
Carmen's work shall consist of building, maintaining,
dismantling, (except all-wood freight train cars);
painting, upholstering and inspecting all passenger and
freight cars, both wood and steel; planing mill,
cabinet and bench carpenter work, pattern and flask
making and all other carpenter work in shops and yards,
except work generally recognized as bridge and building
department work, carmen's work in building and
repairing motor cars, lever cars, hand cars and station
trucks; building, repairing, removing and applying
locomotive cabs, pilors, pilot beams, running boards,
foot and headlight boards, tender frames and
trucks ...an all other other work generally recognized
as carmen's work." (Underscoring added.)
Rule 50 of the controlling agreement provides:
Scrapping Equipment
Work of scrapping engines, boilers, tanks, and cars of
other machinery, will be done by crews under the
direction of a mechanic. (Underscoring added.)
The foregoing rules clearly establish, in the organization's
view, that the work here in question accrued to the carmen's
craft, and specifically to the Claimants who were able to perform
the work and were on furloughed status at all relevant times.
The Organization maintains that the terms of, the sales agreement
SBA No. 570
Award No.
W
Case No. 972
Page No. 4
demonstrates that Carrier authorized the salvage of air brakes,
equipment, and gears and therefore violated Article II of the
September 25, 1964 Agreement, which states:
The work set forth in the classification of work rules
of the crafts parties to the Agreement or in the scope
rule if there is no classification of work rule, and
all other work historically performed and generally
recognized as work of the crafts pursuant to such
classification of work rules- or scope rules were
applicable, will not be contracted except in accordance
with the provisions of Sections 1 through 4 of this
Article 11. In determining whether work falls within a
scope rule or is historically performed and generally
recognized within the meaning of this Article, the
practices at the facility involved will govern.
(Underscoring added.)
Carrier, on the other hand, denies that it violated the
Agreement. Carrier asserts that once the sales agreement with
Raleigh Junk Company was consummated, and carrier relinquished
title to the car bodies, Rules 50 and 138 were no longer
applicable. In support of its position, carrier cites Second
Division Award 5732, Award 140, SBA 570, and Third Division Award
10826, all cases in the Board denied the claim on the basis that
when ownership of the property was vested in the purchaser, the
disputed work no longer belonged under the terms of the schedule
agreement.
SBA No. 570
Award No.
P
Case No. 972
Page No. 5
Carrier further argues that the rationale expressed in the
above awards has been accepted in the on-property handling of
past disputes between the identical parties now before the Board.
In August 1974 and October 1978, Carrier entered into sales
agreements with Gilbert Iron & Steel Co. and Midwest Steel Co.,
respectively, for the purchase of freight car bodies in terms
similar to those in the instant case. Claims filed in both of
these instances were declined and none appealed further, carrier
notes.
Finally, carrier denies the organization's assertion that
the cars were not sold on an "as is, where is" basis, but were
part of a salvage operation. In Carrier's view, the
organization's assertion is just that - assertion and conjecture
- and does not constitute the proof necessary to, sustain the
claim.
In making our determination, this Board notes at the outset
that Carrier, like all viable carriers in the railroad industry,
is involved in the purchasing, rebuilding and repairing of
freight cars. Carrier acknowledges that when, because of
excessive wear or damage, the rebuilding or repair of a
particular freight car is not economically feasible, Carrier is
faced with two options - (1) to dismantle reusable air brakes,
SBA
No. 570
Award
No.
Case
No. 972
Page
No. 6
couplers, draft gears, etc., from the freight car body and sell
the car as scrap, or (2) to sell the car body as scrap on an "as
is, where is" basis with the aforementioned appurtenances still
attached.
There appears to be no serious dispute that the first option
would involve "dismantling" work expressly reserved to the
organization's craft under Rule 138 of the Agreement. Carrier
has argued, however, that it employed the second option in the
instant case by passing ownership of the freight cars to Raleigh
vcr
Junk Company per purchase Order No. 4535. Indeed, Carrier
contended that this case is no different from prior awards and
instances on-this property in which sales agreements entered into
by Carrier did not infringe upon the Organization's craft jurisdiction since the work performed involved only the scrapping of
cars.
Unfortunately, from the record evidence before us, we cannot
agree that Carrier has satisfactorily shown that the cars were
sold as scrap without reclamation of salvageable parts. From our
examination of the record, we note that there is a crucial
distinction between prior awards cited by Carrier and prior
agreements entered into by Carrier on the one hand, and the
instant matter on the other hand. All prior instances referred
to by Carrier were cases in which the terms of the purchase were
SBA No. 570
Award No.
f/'
Case No. 972
Page No. 7
made on an "as is, where is" basis. Unlike prior instances in
which purchase agreements were entered into with Gilbert Iron &
Steel Co. and Midwest Steel Co., which clearly reflect that the
terms of the purchase were on an "as is, where is" basis, the
sales order in the instance case reflects merely that the sale is
"scrap only."
Of course, the Carrier is correct when it states that the
burden is upon the Organization to prove all essential elements
of its claim. In this case, we find the organization has met
that burden by establishing that the work of dismantling is work
reserved to it by express language in the contract and by further
establishing that this was not an "as is - where is" sale in
which appurtenances were still attached to the freight cars. we
note, too, that aside from Carrier's general denial that any
salvage took place, it never provided further information
concerning the terms of the sale, despite the Organization's
requests. Thus, Carrier's contention is not supported by its own
sales agreement, and absent any other probative evidence in the
record, we find that Carrier did violate the Agreement as
claimed.
SBA No. 570
Award No.
V
Case No. 972
Page No. 8
The Board, after consideration of the dispute identified
above, hereby orders that an award favorable to Claimants be made.
Carrier is directed to make payment to Claimantsabove within
thirty (30) days from the date hereof.
AWARD:
Claim sustained.
Adopted at Chicago, Illinois, the
S
day of *Y 1988.
Elliott H. Goldstein, Neutral
LAJJ . (· ~, G~-~^-^-
Carrier Members Labor Members
.,~ Sl3~570-
AL-10
gf7
DISSENT OF CARRIER
MEMBERS
TO
AWARD
&/7,
CASE 972
(REFEREE GOLDSTEIN)
In Award 781 of this Board, we had the identical claim for November-
December, 1983, whereas the present claim involved January-February, 1984
time period. In that decision we concluded:
"Absent any evidence presented by the Organization to the
contrary, the Board finds a reasonable inference may be
made from the Sales Order
No.
4535 that the sale was for
the scrap of 13 wrecked and damaged freight cars in their
entirety ....Further, the Organization does not contend that
the scrapping operation alone (absent any evidence of reclamation) belonged to the Claimants due to either their
classification of work rule, or as work historically performed and generally recognized as work of the carmen craft."
(Page 3).
"The issue of whether a violation of the carmen's classification of work rule occurred must be answered in the negative.
As further noted above, the record is devoid of evidence that
such work was 'historically performed and generally recognized'
as carmen work. Based upon the facts of this case and relevant
awards of this Board and the Second Division, the Board concludes
that no violation of Article II of the September 25, 1964 Agreement was committed." (Page 6).
Award 781 also cited Second Division Award 10413 which involved the identical
issue on this property, and had concluded:
"The evidence of record clearly establishes that ownership of
the cars passed to Midwest Steel and Alloy Corporation as per
purchase order
No.
4629 of Carrier dated May 29, 1980. Other
than the assertion that air brakes and equipment, couplers
and draft gearswere salvaged, the record contains no probative
evidence to support such a claim."
The Carrier on the property advised the Organization in this case:
"On October 28, 1983, 13 second-hand and damaged freight cars
were sold to Raleigh Junk Company, Charleston, West Virginia,
on an 'as-is-where-is' basis to be removed by the purchaser.
The cars were dismantled by the purchaser in order that they
could be removed from the property. It is apparently your contention that the work in question in this instance accrues to
5~3~
5~-~W~
8I~
DISSENT OF CARRIER MEMBERS
- 2 - TO AWARD ~/J, CASE 972'
"claimants and was contracted by Carrier to Raleigh Junk
Company ....The fact that the Purchaser had the cars dis-
mantled by its employees on Carrier property in order to
facilitate their removal did not constitute subcontract
ing, violate any agreement rule, or deprive any carman of
work to which entitled. Additionally, as evidence that the
' work was handled in this instance as has been often the case
in the past, refer to previous correspondence under our file
o
numbers 2-GMG-1847, a similar case which was not appealed, and
2-CMG-2201 and 2-CMG-2651, similar cases which were withdrawn
based on the merits of the cases." (Emphasis added).
To all of the foregoing the Organization's only response in the record of
Award No. 781, and this case, was the following:
"It is my understanding that some of this material is being
sold back to the railroad, couplers, draft gears, air brake
material, etc."
.. a Yet the Majority concludes at Page 6 of the Award that:
" we cannot agree that Carrier has satisfactorily shown that
the cars were sold as scrap without reclamation of salvageable
parts." '
It is the Organization that must substantiate to this Board with evidence
that the Carrier reclaimed salvageable parts. (Awards 790, 731, 714, 677, 612,
475).
Assertions, no matter how frequently and vehemently made, are no substitute
for actual hard evidence. The Majority has relied for its conclusion that sal
vageable parts were reclaimed on pure conjecture and assumption.
Not a single item was ever shown to have been reclaimed. The sale was for
"13 wrecked and damaged freight cars ....scrap only - secondhand material ...."
Nothing more!
s~
S-'7o -Awl °317
DISSENT OF CARRIER MEMBERS
- 3 - TO AWARD
J/7,
CASE 972
Finally, Award 781 was rendered on January 26, 1988. This dispute was in
the hands of the referee at the time that Award 781 was issued. There is no
material difference in the on-the-property handling, and they should have received the same result.
We Dissent.
~e
~lr'o;~ -
"".
44~