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had worked one day per week as a relief foreman since August 1, 1959. M. S. Fling was hired as a switchman at Ennis June 27, 1959; since then he has transferred to Jacksonville and now holds a regular position in that craft at that point.
Aside from the fact that the instant dispute is without merit under the rules of the agreement, the organization has failed to show that these employes sustained monetary damages. It would be unjust for the carrier to be required to pay a second day's pay to Messrs. Green, George and Fling because of the simple reason that they were not available for service at Jacksonville. They were on duty and under pay with this carrier for most of the time covered by this dispute at other locations on the property. They have been fully paid for all work performed. When the theoretical aspects of the organization's claims are examined, it will be noted that they fail to advance a realistic deprivation of work inasmuch as all of the complainants, with the exception of Russell, are fully employed on this carrier and would not be available for work at Jacksonville.
CONCLUSION: The issue in this case may be simply stated:
Does Rule 29 of the Agreement between the parties allow the Carrier to assign mechanic's work to foremen when no mechanics are employed at a particular point?
The answer to this question must be in the affirmative when the clear language of the rule is appraised. The carrier's interpretation of the rule is consistent with that of the Second Division and to pinpoint that statement, the carrier has quoted excerpts from Second Division Awards 2643, 291, 2959, 3270, and 3304. The carrier submits that the denial awards of those disputes have set precedents which require a like award in the instant case. Aside from the fact that the claims are without merit on the above basis, the organization has failed to disclose monetary damages of the complainants.
Wherefore, premises considered, the Board is respectfully urged to deny the instant claims.
FINDINGS: The Second 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 employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
On June 22, 1959, the positions of the Claimants, three Carmen and a Carman Helper at Jacksonville, Texas, were discontinued, and the claim is that the Carrier thereupon improperly transferred to the roundhouse foreman and a roundhouse shop laborer the work of repairing and inspecting cars and air brakes on trains at the yards and repair tracks there.
The Claimants were transferred elsewhere, except one who had an established insurance agency at Jacksonville and therefore chose to remain as a relief foreman for one day per week.
The record shows that the bulk of the inspection and repair work was removed from Jacksonville to other points. The claim is that the remaining carmen's work there was assigned to the foreman and the laborer; the Carrier alleges that the laborer performed no carman's work, but merely fueled, sanded and cleaned Diesels, cabooses, premises and buildings, and that the foreman performed the remaining mechanics' work in about four and onehalf hours per day. We thus are presented with some unresolved questions of fact upon which no evidence was submitted.
The argument is made that by abolishing the mechanics' positions and at the same time assigning the remaining work to the foreman, the assignment was made while the mechanics' positions still existed and was, therefore, not proper under Rule 29. But the assignment did not take effect while the Claimants' positions existed at Jacksonville and it is not claimed that the foreman did any of their work while their positions existed. Under similar circumstances this Division has held that there was no violation of the Agreement. Awards 2916, 2959, 3270 and 3584.
NATIONAL RAILROAD ADJUSTMENT BOARD
ATTEST: Harry J. Sassaman
Dated at Chicago, Illinois, this 20th day of November, 1962.
DISSENT OF LABOR MEMBERS TO AWARD 4084
If the majority felt that unresolved questions of fact had been presented then this case should have been remanded for determination of such facts. However, one question of fact was resolved and that was the fact, according to the carrier's own allegation, that the foremen performed mechanic's work about four and one-half hours a day. Due to the decrease in the amount of carmen's and carmen helper's work the carrier, without violating the agreement, might have reduced its force of carmen and carmen helpers in accordance with the seniority roster to the extent of retaining only one carman and one carman helper, but to transfer the work to employes having no seniority rights to such work constitutes a change in working conditions as embodied in the existing agreement and is in violation of said agreement.
An affirmative award should have been made enforcing the terms of the existing agreement.
C. E. Bagwell
E. J. McDermott
R. E. Stenzinger
James B. Zink
Docket No. 3864
NATIONAL RAILROAD ADJUSTMENT BOARD
The Second Division consisted of the regular members and in
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 105, RAILWAY EMPLOYES' DEPARTMENT, A. F. OF L. — C. I. 0.
UNION PACIFIC RAILROAD COMPANY
DISPUTE: CLAIM OF EMPLOYES:
1. That the Carrier violated the current agreement, when on October 16, 1959 Gang Foreman Howard Jones ordered and insisted that Locomotive Carpenter Herman Stumpf paint the identification numbers on the ends of Locomotive tender tank.
2. That accordingly the Carrier be ordered to compensate locomotive Painter Lloyd Forcum for two hours and forty minutes at time and one-half the regular locomotive painter's rate of pay.
EMPLOYES' STATEMENT OF FACTS: Lloyd Forcum, hereinafter referred to as the claimant, is employed as a locomotive (carman) painter in the roundhouse at Cheyenne, Wyoming, and has seniority as a painter as of 5-6-25 in the mechanical department at this point on the Union Pacific Railroad Company, hereinafter referred to as the carrier.
On October 16, 1959 the claimant, who works the first shift, had completed his day's work and gone home. Shortly after 3:30 P. M., the beginning of the second shift, Gang Foreman Howard Jones instructed Herman C. Stumpf, a locomotive carpenter who had just come to work, to stencil the numbers on both ends of tender tank No. 74. He did this after protesting to the foreman that it was painters' work.
Claim was presented to the carrier by the local representative October 21, 1959 in the amount of eight hours at time and one-half. This was declined by the carrier. On December 3, 1959 the claim was presented to the superintendent of motive power and machinery in the amount of a call, or two hours and forty minutes at time and one-half, in an effort to correct the situation and settle the claim on the property. On December 29, 1959 the carrier declined this offer. Further attempts, both in correspondence and conference, failed to settle this dispute and in conference on May 26, 1960, following Mr. Neuhart's letter of May 5, 1960, it was suggested by Mr. Erickson that this matter be held in abeyance until a meeting with Mr. Neuhart could be arranged. This conference was arranged and held August 25, 1960 in Omaha and a settlement of the claim could not be reached. Mr. Neuhart, general superintendent of motive power and machinery is the highest designated officer of the carrier.
The Agreement effective September 1, 1949 as subsequently amended is. controlling.
POSITION OF EMPLOYES: Rule 31 of the controlling agreement divides those holding seniority in the carmen's craft into five subdivisions, one: of which is the painters. The rule captioned Seniority reads in part:
“Seniority of employes in each craft covered by this agreement shall be confined to the point employed in each department.
Five subdivisions of the carmen as follows:
The seniority lists will be open to inspection, and copy furnished the committee.”
The employes hold that this establishes the painters as a class within the carmen craft and holding seniority and rights to their own work.
Rule 134 of the agreement provides, among other things, that, and we quote in part:
“Classification of Work.
Carmen's work shall consist of building, maintaining, dismantling, painting, ...; painting, varnishing, surfacing, decorating, lettering, cutting of stencils and removing paint, etc.”
The employes' position is clear. Under these rules the painters at points where painting, as outlined in 134, is performed properly belongs to those em-ploges who have established themselves as carmen painters and hold seniority as such in line with Rule 31.
Second Division Award 3410, while not controlling, is persuasive to the employes' position in this dispute.
Therefore, the employes contend that Mr. Forcum was entitled to be called to perform this work and we ask that your Honorable Board sustain the employes' claim.
CARRIER'S STATEMENT OF FACTS: This dispute presents the claim of Carman Painter Lloyd Forcum for two hours and forty minutes at time and one-half the locomotive painter's rate when another carman stenciled identification numerals on a locomotive tank tender.
On October 16, 1959, the tender on gas-turbine locomotive 74 was changed. During the afternoon shift it became necessary to stencil the numbers "74" on the replacement tender on the forward and rear surfaces to conform with the locomotive designation. Carman Stumpf (classed as a locomotive carpenter), who was assigned on the third shift, performed this work soon after he reported at 3:30 P. M. About 7:00 P. M., the locomotive, with the newly stenciled replacement tender, was dispatched out of Cheyenne in road service.
The organization filed this claim, alleging that a painter should have been used. The work in dispute arose during the afternoon shift. Carmen painters are not employed at the Cheyenne Round House, except on the first shift, because there is not sufficient work to warrant additional assignments on the other shifts.
On October 21, 1959, the local chairman of the Brotherhood Railway Carmen of America filed claim by letter addressed to the general foreman at Cheyenne. The claim was declined by the general foreman in a letter dated October 26, 1959. The claim was appealed to the master mechanic at Cheyenne on November 2, 1959. On November 4, 1959, the claim was declined by the master mechanic. The carrier's declination was rejected by the local chairman on November 12, 1959. The claim was next appealed by the general chairman to the carrier's highest designated officer on December 3, 1959, with a statement of Herman C. Stumpf attached. Mr. Neuhart, the carrier's general superintendent, motive power and machinery, and, in this instance, the carrier's highest designated officer, declined the claim on December 29, 1959. Mr. G. S. Poole, who became the organization's general chairman effective January 1, 1960, rejected the carrier's declination on February 19, 1960. Mr. Neuhart reaffirmed his declination on April 5, 1960.
POSITION OF CARRIER: The organization, in progressing this claim, has not specifically relied upon any particular rule in the agreement. The only provision cited was in connection with the organization's contention that:
" * * * Painters are carried on a separate roster as required by Rule 31 * .” (Carrier's Exhibit C.)
Apparently, the organization files the claim under its classification of work rule. But this claim cannot find support under either the classification of work rule or a seniority concept.
The following provisions from the effective shop crafts agreement are reproduced.
Seniority of employes in each craft covered by this agreement shall be confined to the point employed in each department.
Two subdivisions of sheet metal workers:
Sheet metal workers