at East Thomas, which, at times, necessitates use of truck for transporting men, tools, and material to the point or place where repairs are made; and (b) cars damaged on line of Central of Georgia and brought to East Thomas to be put in shape to move to place of repair or disposition, or be permanently repaired."

The new agreement then provides for the basis of payment,

"including rental of equipment used in transporting men, tools, and material to place where repairs are made away from East Thomas",

and proceeds:

"It is understood that, while the agreement of December 20, 1948, as amended by letter agreement of August 31, 1949, and memorandum agreement of September 29, 1949, provides for Central of Georgia cars being taken care of and repaired at the mechanical facilities of the Illinois Central in its East Thomas Yard at Birmingham, said Agreement, as heretofore and as herein amended, shall be construed to include and apply to repairs to Central of Georgia cars or cars in its account at points or places in or about the joint Birmingham Terminal other than at said mechanical facilities of the Illinois Central.” (Emphasis ours.)

In other words, the 1951 agreement still relates to "the joint Birmingham Terminal" and to "points or places in and about" it. We need not consider whether this work on Carrier's line of road 17 miles away is to be construed as having been done "in or about the joint Birmingham Terminal" within the intent of the 1951 agreement. For that agreement preceded this claim by only seven and one-half years and fails to indicate an "historical agreement and practice" in the light of which the Agreement of September 1, 1949, should be construed.

AWARD

Claim sustained at the applicable straight time rate.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION

ATTEST: Harry J. Sassaman

Executive Secretary

Dated at Chicago, Illinois, this 6th day of February 1963.

DISSENT OF CARRIER MEMBERS TO AWARD 4111

The Board's Opinion and the Award based thereon are erroneous. This Award has settled nothing and furnishes no precedent or help in future problems analogous to the instant dispute. This Award is not a just determination of this dispute, because the erroneous new interpretation given to Rule 117 by the Board is not supported by the unproven assertions of the Organization. To arrive at this conclusion, it was necessary for the Board to set aside the evidence presented by the Carrier and then to give full weight to the unsupported claims and contentions of the Organization.

The record in this docket showed that both the Carrier and the Organization had over the years understood that what was done here was not a violation of any agreement provision. As shown, the work in dispute since at least 1917 had been handled in precisely the same manner as here with no

question ever being raised as to the propriety of such handling. Notwithstanding this lack of objection or challenge, the Board had to ignore this past practice in order to reach its conclusion. This practice now in dispute also exists throughout the Railroad industry. In such a reciprocal arrangement between Carriers, the operation of the law of averages equalizes the gains and the losses to the employes.

The Carrier in support of its position offers in evidence statements from the following officials - Master Mechanic, Superintendent of Car Department, and Superintendent of Motive Power; also a statement from the Illinois Central Car Foreman at Birmingham Terminal, as well as an accounting record. going back to the year of 1948, one year prior to the present agreement. It is wrong for this Board to reject evidence of its own volition and without any objection or challenge to such evidence having been raised. Apparently this was done.

Moreover, the Organization in arguing before the Referee recognized the Carrier's right to have a contract with the Illinois Central at Birmingham Terminal to allow for the repairs of Central of Georgia equipment by Illinois Central employes within the Terminal limits. The Organization also recognized the Carrier's right to call for help in time of an emergency, as have many awards of the N.R.A.B.

Rule 117 has no application in this dispute. The record shows that Central of Georgia hopper car No. 21789 was set out of a train on the Central of Georgia main line, 17 miles outside of Birmingham Terminal, because it was unsafe to continue in service or to be moved to the nearest repair facility, due to a bad wheel. The Organization admitted that if hopper car No. 21789 could have been returned safely to the Terminal, no claim would have arisen.

Since the car could not be moved and it failed in service in the vicinity of the Terminal, it was only reasonable and practical for the Carrier to arrange for the Illinois Central to make the car safe for movement in accordance with the agreement terms and custom. This Board has repeatedly held that the practical construction placed on the agreement as evidenced by the practice is controlling. (See Awards 758 and 3873 of this Division and others.)

The public has interest in prompt and uninterrupted transportation service, and when trouble occurs to the Carrier's equipment it is the obligation of the Carrier to restore service as speedily as possible. For this reason, Carriers must have certain reciprocal arrangements covering both car and locomotive emergency service and repairs.

Rule 117 does not contemplate that the employes are entitled to perform work such as involved in this dispute. The Organization waited ten years (date of agreement to date of claim) and then came before this Board and successfully claimed rule violation, while enjoying the benefits of the same practice elsewhere.

For these reasons, we dissent.

P. R. Humphreys

F. P. Butler

H. K. Hagerman

W. B. Jones

C. H. Manoogian

Docket No. 3866

2-MP-CM-'63

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.

PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)

MISSOURI PACIFIC RAILROAD COMPANY

DISPUTE: CLAIM OF EMPLOYES:

1. That under the current agreement other than a carman was improperly used to fill the position of Carman W. W. McDonald while he was off on his annual vacation during the period July 13, 1959 to July 31, 1959, inclusive, at Myrick, Missouri.

2. That accordingly, the Missouri Pacific Railroad Company be ordered to compensate Carman M. C. Trainor in the amount of fifteen (15) eight (8) hour' work days at the applicable rate of pay.

EMPLOYES' STATEMENT OF FACTS: Myrick, Missouri is a point located about 38 miles from Kansas City, Missouri, on what is known as the River Route Freight Line running between Kansas City and St. Louis, Missouri. Since the Missouri Pacific Railroad Company, hereinafter referred to as the carrier, employs only one car inspector at Myrick, Missouri, namely, Mr. W. W. McDonald, this point is termed a 'one-man' point.

On July 13, 1959, Carman W. W. McDonald started his annual three weeks' vacation, completing same on July 31, 1959. Mr. L. S. Schwartze, who holds seniority at Jefferson City, Missouri as a laborer was sent to Myrick to fill Mr. McDonald's job while he was on vacation. Mr. M. C. Trainor, hereinafter referred to as the claimant, was available and willing to fill this vacation vacancy had he known of its existence.

The general chairman received copy of Form 1595, putting out furloughed call for man to fill this three weeks' vacation at Myrick. After receiving copy of Form 1595 the general chairman, under date of July 10, 1959, wrote Chief Mechanical Officer, Mr. L. R. Christy, advising him of the error in putting out system call to fill job under the jurisdiction of Master Mechanic Dent.

Under date of August 24, 1959, Mr. Christy wrote General Chairman Bond stating that a laborer had been used to fill this vacation vacancy of Carman McDonald at Myrick.

When General Chairman Bond learned of a laborer filling this vacation vacancy through the employes at Jefferson City, Missouri, he contacted Mr. Christy's office and spoke to Superintendent of the Car Department, Mr. H. S. Marsh, and Mr. Marsh took immediate action to have Mr. Schwartze pulled off this job on July 31st. Mr. Schwartze, Laborer, had filled this job for a period of fourteen (14) days instead of the job being filled by a carman, and this constitutes the dispute before your Honorable Board for adjudication.

This matter has been handled up to and including the highest designated officer of the carrier who has refused to adjust it.

The agreement effective September 1, 1949, as subsequently amended, is controlling.

POSITION OF EMPLOYES: As outlined in employes' Exhibit B, the carrier put out a system call which was in violation of the rules. This action was protested by the general chairman and, as previously stated, when Superintendent of the Car Department, Mr. Marsh, had this violation called to his attention he took immediate action and pulled Laborer Schwartze off the job on July 31, 1959. Also, Mr. Christy stated he used a laborer to fill a carman's job at Myrick. He also admitted that a system call had been put out and further facts reveal that a call was put out to Jefferson City, copy furnished office of general chairman. The employes herewith submit copy of Local Chairman O. D. Blair, Atchison, Kansas, statement to the effect that he did not receive a notice about furnishing a carman for this three weeks' vacation at Myrick, Missouri. Local chairman at Omaha, Nebraska, Mr. E. V. Costanzo's statement dated September 5, 1959, substantiates the fact that no system call was received at either of these points.

Rule 9 (a), reads:

"TEMPORARY VACANCIES: RULE 9 (a).

Employes sent out to temporarily fill vacancies at an outlying point or shop, or sent out on a temporary transfer to an outlying point. or shop, will be paid continuous time from time ordered to leave home point to time of reporting at point to which sent, straight-time rates to be paid for straight time hours at home station and for all other time, whether waiting or traveling. If on arrival at the outlying point there is an opportunity to go to bed for five (5) hours or more before starting work, time will not be allowed for such hours."

and provides for filling temporary vacancies.

The vacation agreement, particular reference to Article 12(b), reading in pertinent part:

“... However, under the second sentence of the article when the position of a vacationing employe is to be filled and a regular relief employe is not utilized for that purpose, then effort must be made to observe the 'principle of seniority' as 'seniority' is defined and required to be observed in existing rules agreements."

(Emphasis ours.)

provides that when vacation relief is not utilized the principles of seniority will be followed.

The employes submit that Laborer L. F. Schwartze who holds seniority at another point, namely, Jefferson City, Missouri, was not a carman under the terms of Rule 116, reading:

"CARMEN QUALIFICATIONS: RULE 116.

Any man who has served an apprenticeship, or who has had four years' experience as a carman, and is capable of performing car work, and who with the aid of tools with or without drawing can lay out, build or perform the work of his craft or occupation in a mechanical manner within a reasonable length of time, may qualify as a carman."

Therefore, Laborer Schwartze was not qualified under the terms of Rule 26 (a), reading in pertinent part:

"None but mechanics or apprentices regularly employed as such shall do mechanic's work, as per special rules of each craft . . ."

to perform the work regularly performed by Carman McDonald as covered in Rule 117 of the current agreement.

If a carman was not available we had ample car helpers, some with over three (3) years experience, to be set up to carman as provided in our upgrading agreement. We also have a memorandum of agreement which permits a helper to work as an upgraded carman away from his home point, and for your Honorable Board's reference we are submitting herewith copy of letter of instructions on the memo agreement under date of November 26, 1956.

The vacation schedule is aranged before January 1, giving the carrier six or seven months advanced notice as to when a man is going on his vacation. Therefore, there was no creditable reason for the carrier not to have acquired a carman to fill this vacation vacancy instead of having a laborer, who holds no right to this work, perform carmen's duties while Carman McDonald was on vacation. The carrier erred when making the assignment of Laborer Schwartze to fill the position of Carman McDonald to perform carmen's work and constituted a violation of the carmen's scope provisions of the agreement which your Honorable Board in Award 1963 previously ruled improper on this property, taking the position that work contained within a craft's scope cannot be lifted therefrom and assigned to others not covered by its terms.

The improper action of the carrier damaged carmen holding seniority as such under Rule 25 and the claimant, being a carman, is entitled to be compensated for the scope rule violation as set out in employes' claim and we feel sure your Honorable Board will sustain this claim.

CARRIER'S STATEMENT OF FACTS:

1. There is an agreement between the Missouri Pacific Railroad Company and System Federation No. 2, including the Brotherhood Railway Carmen of America, on file with your Board, which is made a part hereof by reference.

2. The carrier employs a car inspector at Myrick, Missouri, located on the route along the south bank of the Missouri River between Jefferson City and Kansas City at the junction with the Lexington Branch. Carman W. W. McDonald has filled that position for a number of years.