« PreviousContinue »
employes of the transportation department had performed this work, thereby creating a situation dangerous to carmen, and that the work should in fact be performed by carmen. * * *"
In contending that the work involved in Docket MC-1317-65 was not car inspectors' work, the employes relied upon Rule 27 “Classification of Work" and Rule 26 “Qualifications” of the agreement of May 1, 1948. These rules appear in the current agreement (which is the agreement of May 1, 1948 with revisions to March 1, 1956) as Rules 25 and 24. Current Rule 24 is exactly the same as old Rule 26, while current Rule 25 has been changed somewhat from the old Rule 27. These changes, however, have no bearing on the case here involved and for purposes of comparing the instant case with Docket MC-1317-65 the rule, in effect, is the same. For ready reference, Rule 25 of the current agreement is quoted below, with the old language emphasized and the new language emphasized in capital letters:
“RULE 25 – CLASSIFICATION OF WORK
"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 and removing and applying locomotive cabs, pilots, pilot beams, running boards, foot and headlight boards, tender frames and trucks; pipe and inspection work in connection with air brake equipment on freight cars, applying patented metal roofing; operating punches and shears doing shaping and forming; work done with hand forges and heating torches in connection with carmen's work; painting with brushes, varnishing, surfacing, decorating, lettering, cutting of stencils
and removing paint (Not including use of sand blast machine
(copy], REMOVING PAINT AND USE OF SAND BLAST MACHINE;
all other work generally recognized as painters' work under the supervision of the locomotive and car departments, except the application of blacking to fire and smoke boxes of locomotives in engine houses; joint car inspectors, CAR INSPECTORS, safety appliance and train car repairers oxyacetylene, thermit and electric welding on work generally recognized as carmen's work; and all other work generally recognized as carmen's work. It is understood that present practice in the performance of work between the carmen and boilermakers will continue.”
In Award No. 1394 the Second Division without the assistance of a Referee denied the claim of the employes and upheld the position of the carrier in Docket MC-1317-65, the findings of the Board reading as follows:
“The record in this case does not disclose any violation of the current agreement, as the work of coupling and uncoupling of locomotives at the Pittsburgh Terminal is recognized by the parties as
being carmen's work, see Carriers Exhibit C.
“The question of signaling enginemen when uncoupling the locomotives will be taken care of by the settlement (Employes' Exhibit B-1) made in the case of the use of 'Blue Flags' at Pittsburgh Terminal which case was withdrawn from this Board upon such settlement." (Emphasis ours.)
Although Award 1394 refers specifically to the coupling and uncoupling of locomotives, both carrier and employes in their respective submissions referred to cutting off engines, parting of trains and cutting off cars. It is carrier's position that the work involved in the instant case is no different than that which was previously before this Board in Docket MC-1317-65 and Award 1394 recognized the propriety of having this work performed by car inspectors.
During discussion of this case on the property the employes contended that a comparable case, identified as Case PS-43, had been paid by the carrier and therefore the claims here before the Board should also be allowed. Actually the two cases are not comparable at all. Case PS-43 involved the claim of one car inspector for eight hours' pay on October 8, 1959 in connection with the handling of B&O Train No. 107 at Pittsburgh Station. The normal handling of B&O Train No. 107 on arrival at Pittsburgh Station was for a P&LE yard engine and crew to work the rear end of the train while one car inspector would uncouple the road engine at the head end of the train and the road engine would then move out on the main track. After switching the rear end of the train, the P&LE yard engine and crew would couple to the head end car and set it to another track and the B&O road engine would re-couple to the train. These moves resulted in an average delay of twenty minutes each day to B&O Train No. 107.
On October 8, 1959, in an effort to reduce this delay, the B&O road engine and the car inspector were used to switch out the head end car at the same time the P&LE yard engine and crew were switching the rear end of the train. The car inspector cut the connections and pulled the coupler pin between the first and second cars, the B&O road engine switched the head end car to another track, the car inspector cut the connections and pulled the coupler pin between the B&O road engine and the car, and the B&O road engine then returned and coupled to the train. During all of these moves the P&LE yard engine and crew were working the rear end of the train. This happened only on October 8, 1959, and this fact was substantiated by International Representative J. Schawinski during discussion of this claim. Case PS-43 was disposed of by the payment of a compromise allowance of four hours to the claimant car inspector due to the particular circumstances involved therein, this settlement being agreeable to the organization.
It is apparent that in Case PS-43 the car inspector participated in the switching of a car from one track to another without any trainmen, whereas in the case here being considered by this Board the car which was cut off by the car inspectors was not switched to another track by them but was left where it was for later movement by a yard crew. Further, the handling complained of in Case PS-43 occurred on only one date, and it will be noted that the normal method of handling B&O ran No. 107 both before and after the date of the complaint involved work performed by car inspectors similar to that here in dispute and no complaint was registered concerning this normal method of handling B&O No. 107. For these reasons the two cases are not comparable and the compromise settlement made in Case PS-43 cannot be considered as a precedent in the current case.
THERE IS NO RULE IN THE AGREEMENT
WHICH SUPPORTS THESE PENALTY CLAIMS.
On December 6, 1960, Claimants Spanik and Hannigan were assigned as car inspectors at Pittsburgh Passenger Station from 4:00 P. M. to 12:00 Midnight and were fully paid for this tour of duty. According to the employes' statement of claim, the claimants were instructed to perform the work in question “at about 9:40 P. M.", and carrier's records indicate that Train No. 277 departed from Pittsburgh Passenger Station at 9:45 P. M. Thus it is evident that the work complained of was performed during the course of claimants' assignments and while they were on duty and under full pay.
The work of cutting off the rear car of Train No. 277 at Pittsburgh consumed only approximately five minutes during the course of claimants' eighthour assignments, for which they were paid, and was work incidental to their duties as car inspectors. Neither were claimants deprived of any work. There is no basis for an additional payment of eight hours for this service, and there is no rule in the carmen's agreement which supports the request of the employes for such a penalty payment.
In this respect, carrier would call attention to Docket No. 3729, Award No. 3672, of the Second Division, involving the same parties as here involved, in which the organization advanced the contention that a car oiler and packer had been required to perform work which should have been done by section employes and storehouse employes and requested that the car oiler and packer be awarded a penalty payment. The work in question in that case was also performed during the course of the claimant's assignment, while he was on duty and under pay. In Award No. 3672 the Second Division, with Referee Richard F. Mitchell, denied the claim of the employes, and the findings of the Board stated in part as follows:
“* * * The carrier raises several reasons why the claims should be denied. We will discuss only one of them, to wit, the claims for penalty pay are without agreement support.
“The claimant was fully paid for the work he performed, he lost nothing. The employes have not cited any rule of the Agreement to support the claims for penalty pay, in fact we think they have conceded same in their submission, * * *
"In the absence of a rule in the agreement which would support the penalty claims, they will have to be denied.” (Emphasis ours.)
The organization in progression of these claims for penalty pay have not cited any rules of the agreement to support same. Carrier submits that the organization has not cited any rule of the agreement in the handling of these claims for penalty pay, due to the fact that no such penalty pay rule exists. It therefore follows that as no rule exists supporting the claims for penalty pay, they must be denied.
In the absence of a rule in the agreement which would support the claims for penalty pay as presented, it is clear that a sustaining award would, in effect, establish a new rule without having adhered to the negotiatory process required by the Railway Labor Act. This Board has repeatedly held that it is without authority to revise, change, modify, rewrite or expand agreements. See Awards 1122, 1130, 1164, 1181, 1386 and 1486, among others.
The petitioning organization has been before this tribunal on numerous occasions, and for sundry reasons, in an effort to secure unwarranted penalty payments. For example, see this Division's Awards 3454, 3339, 3338, 3337, 3220, 3096, 3040 and 2176.
Carrier submits that the performance of the service in dispute required approximately five minutes' work incidental to claimants' assignments, which work was performed by claimants while on duty and under pay. The claims for penalty pay as requested certainly cannot be justified, and carrier respectfully requests that the claims be denied.
Referee Cheney's decision and award in the coupling and uncoupling of air, signal and steam hose controversy between the Brotherhood of Railroad Trainmen and certain participating carriers on a national basis recognized the overlapping of tasks common to carmen and trainmen. In Referee Cheney's history of the coupling function he stated in part:
"The evolutionary circumstances just detailed, are persuasive that from the inauguration of the air brake systems to modern times, trainmen, yardmen, and carmen have all performed the Coupling Function. From the perspective of interpretations placed upon the restrictive rules themselves by the parties, such rules do not establish hard and fact exclusive craft boundaries as between the Brotherhood of Railroad Trainmen, and the Brotherhood of Railway Carmen, allocating the performance of the Coupling Function solely to carmen. On the contrary, present rules portray examples of the overlapping of craft lines, and illustrations of tasks which are common to the crafts of both the Brotherhood of Railway Carmen, and the Brotherhood of Railroad Trainmen. It should also be observed that this conclusion is not original with the present Referee. The Federal District Court, in the case of Shipley vs. Pittsburgh and L. E. R. Company, 83 F. Supp. 722, previously reached an identical conclusion, from which significantly no appeal was taken."
CONCLUSION: Carrier has shown that the work complained of was incidental to claimants" assignments as car inspectors and was properly performed by them in accordance with the past practice at the location involved, that this work consumed approximately five minutes during the course of claimants' assignments while they were on duty and under pay, that the claimants were not deprived of any work, that there is no rule in the carmen's agreement which prohibits the use of car inspectors on the work in dispute or which provides for a penalty payment when car inspectors are so used, and that there is no rule in the agreement between this carrier and the Brotherhood of Railroad Trainmen which exclusively reserves the work in question to employes represented by that organization.
Carrier has cited numerous awards of the Second Division, National Railroad Adjustment Board, in support of its position, including Awards 1394 and 3672 which involved the parties here in dispute and which have direct application to the case here in dispute. Carrier has also shown that the alleged precedent case advanced by the organization during discussion on the property was not comparable to the case here in dispute.
In view of the above, carrier submits that the penalty claims as presented are not valid and respectfully requests that same be denied.
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.
The Claimants, Car Inspectors T. J. Hannigan and C. F. Spanik worked from 4:00 P. M. to 12:00 Midnight at the Carrier's Pittsburgh Passenger Station, Pittsburgh, Pennsylvania.
On December 6, 1960, train No. 277 — consisting of one express, two pullman and two coaches — was tested with a road engine and then the Claimants notified the Conductor and Engineer that the train had been tested and was ready for travel. Around 9:40 P. M., on that date, the Station Master instructed the Claimants to cut off the rear car— number 418 — from Train No. 277. Inspector Spanik cut the steam, air and signal on the west end of Car No. 418, while Inspector Hannigan went to the head of the Train and upon receiving Spanik's signal, he (Hannigan) instructed the Engineer to back up. When the slack was taken, Spanik cut Car No. 418 from the Train and then gave Hannigan a go-ahead signal.
The Organization contends that the work above mentioned is not car inspector's work and, accordingly, the Claimants should be paid eight hours pro rata pay for December 6, 1960.
The Organization considers this claim as a continuing one and presents other dates on which alleged violations occurred.
It is to be noted that the Claimants received the assignment to cut off Car No. 418 at 9:40 P. M. — and the train's scheduled departure time was 9:45 P. M. Accordingly, the Claimants' work efforts covered a period of five minutes or less but yet the Claimants are seeking eight hours' additional pay for five minutes work. The logic or justice of such a claim escapes the comprehension of this Board — especially when the following facts are considered:
1. That the Trainmen have not complained that the work performed
by the Claimants is reserved solely to their craft;
2. That the Claimants were fully paid for the work they performed
and that the additional work was incidental to their regular duties and to the movement of a train;
3. That the work in question was necessary for the completion of
4. That no rule of the controlling Agreement supports the Claimants'
petition for penalty pay;
5. That no rule of the controlling Agreement prohibits car inspectors
from cutting off cars from passenger trains.