July 22 - Changed one air hose and one brake shoe. July 26-One sill step straightened. Aug. 4-Pin renewed in brake hanger. Aug. 9— Renewed one air hose. Aug. 13 Adjusted packing in four boxes. Aug. 24-Replaced one handhold. Aug. 25 · Examined four brass, replaced one wedge and Aug. 31 Renewed one hand brake. Sept. 4-Repaired hand brake chain and Clevis. Sept. 8- Repaired caboose marker lamp. Sept. 16- Renewed caboose door glass and door latch. Sept. 23-Applied brake rod pin. Sept. 25-Changed one air hose. This list of repairs was shown to the general chairman in conference November 19, 1959, and a copy furnished him. This dispute was originally presented to the carrier by Local Chairman J. A. Russell on July 15, 1959, and was progressed to the Manager of Personnel in a letter dated August 14, 1959, which was signed by General Chairman E. C. Wolff. A decision declining the claim was sent to Mr. Wolff on October 2, 1959. The claim was discussed in conference November 19, 1959, and failing disposition, it has been submitted to your Division for a decision by the organization. POSITION OF CARRIER: The four claimants in this dispute contend that they should have been retained in service at Jacksonville, Texas, notwithstanding the fact the service requirements at that point are such that only one man is required to do all of the mechanical and car department work. The organization states in effect that the carrier has improperly transferred mechanic's work from the four men involved to the roundhouse foreman and a laborer. It is true that the reduced mechanical work formerly done by carmen at that point has been assigned to the roundhouse foreman in accordance with Rule 29 of the September 1, 1949, Agreement; however, the carrier emphatically states, no mechanic's work was transferred to the laborer; in fact, this latter employe has continued to do only laborer's work in line with what he had done prior to June 23, 1959. The carrier, in its statement of facts, referred to the curtailed train service now using the Jacksonville route and terminal and showed on page six ante that the roundhouse foreman expends an average of approximately four and one-half hours' active work in performing the necessary mechanical work at Jacksonville. The carrier, on page two, supra, submitted the average number of few cars handled through Jacksonville on the three trains using that terminal. It was stated that the Jacksonville-Nacogdoches turn operated six days per week; the Jacksonville-Dallas local operated six days per week; however, since January 20, 1960, has operated only on a triweekly basis and the JacksonvillePalestine turnaround job operated only two to four times per week. The mechanical work requirements at Jacksonville show that the carrier was justified in reducing car and mechanical forces to the extent complained of herein. The organization vaguely alleges that the carrier transferred the work, thereby violating the agreement; however, the efficient, economical and prudent management of this carrier's property required this company to eliminate unneeded mechanical forces at Jacksonville, and those disposed of were employed at other locations, with the exception of the carmen's Local Chairman Russell, who elected to remain at Jacksonville because of his insurance business, and relieve the roundhouse foreman one day a week at the foreman's rate of pay. Also, the reduction in force and assignment of all mechanical work to the foreman was done strictly within the terms of the agreement between the parties. When the organization's complaints and penalty claims are examined in the light of the factual circumstances involved, it is readily apparent that they are without merit because of the following points: "1. The assignment of mechanic's work to Roundhouse Foreman H. T. Roddy was proper under Rule 29 of the September 1, 1949 Agreement. 2. Interpretation of rules similar to Rule 29 of the Agreement between the parties, as rendered by the Second Division, NRAB, sanctions the action taken by the Carrier in this case. 3. The employes allegedly adversely affected in the reduction of force at Jacksonville are employed on this Carrier and they should be estopped from requesting penalty compensation inasmuch as they were on duty and under pay during the period of these claims, with the exception of relief Foreman Russell, and were not available for service at Jacksonville." Each of these points will be discussed separately. 1. The assignment of mechanic's work to Roundhouse Foreman The agreement between these parties, on file with the Division, dated September 1, 1949, was incorporated and made a part of this submission. The carrier's actions in this dispute are in consonance with the first paragraph of Rule 29 of that agreement reading: "None but mechanics or apprentices regularly employed as such shall do mechanic's work as per special rules of each craft, except foremen at points where no mechanics are employed." (Emphasis ours.) The rule is crystal clear and permits the foreman to perform mechanic's work at points where no mechanics are employed. Since June 23, 1959, no mechanics have been employed at Jacksonville. That they are not needed is attested to by the fact the foreman in a four and one-half hour day performs all of the mechanical and supervisory work required at that point. It was the carrier's obligation to reduce mechanical forces at that point and when it was necessary to perform mechanic's work, such work was properly assigned to the roundhouse foreman in accordance with Rule 29. This may be done under the plain intent of this unambiguous rule. To hold otherwise would be to say that the rule is without meaning or effect. It says: "*** None but mechanics *** shall do mechanic's work * except foremen at points where no mechanics are employed." When this language is analyzed, it is understandable why the organization was unable to offer a reasonable defense to the application of this rule. It is submitted that the carrier has not violated the terms of the September 1, 1949 Agreement, but in the instant case has strictly complied with its terms. 2. Interpretation of rules similar to Rule 29 of the Agreement The agreement of September 1, 1949, and particularly Rule 24, provides that forces may be reduced when necessary. Under the circumstances obtained at Jacksonville, it was necessary to reduce expenses at that point. During the period intervening from June 23, 1959, until the conference of November 19, 1959, the roundhouse foreman easily performed all mechanic's work. The continued check of work requirements at Jacksonville since that time shows that the foreman is not over-burdened with work. In fact, the organization in conference November 19, suggested that this case be settled by reassigning one carman to work at that location, which shows that the committee realizes their request for the return of three carmen and one helper to the forces is ridiculous. There can be no question that the carrier's interpretation of the first paragraph of Rule 29 is correct. Your Division has endorsed the carrier's action by ruling on similarly worded rules of other contracts. Award No. 2643 was rendered with the assistance of Referee J. Glenn Donaldson. The findings in part are most apropos to the instant case: "While Rule 11 contains some coverage not found in the usual assignment of work rule such additional provisions have no application here. The pertinent portion of said rule, therefore, reads: 'None but mechanics or apprentices employed as such shall do mechanic's work, except at points where mechanics are not employed foremen will perform the work of any craft to which they are assigned, * ** (Emphasis ours.) Mechanics are no longer employed at Thomure. Their furloughs were not temporary nor done to make way for another class of employe. The situation at Thomure is real and is the result of dieselization. It can be considered permanent. The organization does not contend that there remains sufficient work to keep both foreman and mechanics occupied. The fact that the laborer works on the average one hour per day may be indicative of the volume of the remaining work at this point. The emphasized portion of Rule 11, we find, applies and justifies carrier's handling of the remaining work at this point. Rule 26 is subject to the noted provision of Rule 11. Rule 27 is not offended by the occasional use of laborers under the circumstances here present. We find the claims asserted without merit. AWARD: Claim denied." That particular award was followed in Award 2916 with Referee James P. Kiernan. The findings, in part, state: "Rule 32 permits foremen to perform mechanic's work where no mechanics are employed. During the year 1949, there were 63 employes in the locomotive department forces. This number was reduced to 48 during 1950, to 29 during 1954, to 16 during 1955 and as of March 21, 1956, to 9, including two foremen. The dieselization has caused a continual reduction in the amount of mechanic's work at Green Bay. We do not find that the claimants were 'wrongly laid off.' AWARD: Claim denied." Award 2959 continued the interpretation which sustains the carrier's action in this dispute. It states in part: "As to the foremen, Rule 32 (a) provides: 'None but mechanics or apprentices regularly employed as such shall do mechanics' work as per special rules of each craft, except foremen at points where no mechanics are employed.' There were no machinists employed at Marquette, Iowa, the point involved in this dispute. Machinists can do all the work of the craft, and therefore since 32 (a) permits a foreman to do the work of a machinist he may also do the work of a machinist helper." The agreement between System Federation No. 101, RED, AFofL-CIO and Great Northern Railway Company contains an identical rule to the first paragraph of Rule 29 of agreement between these parties. It is designated as Rule 42 A. This rule disposed of a similar dispute between the machinist and Great Northern Railway in Award 3270. The findings, in part, read as follows: "Under Rule 42(a) the carrier was authorized to assign foremen to do mechanics' work at Sioux City after May 18, 1956, since no mechanics were employed there. We are unable to say on the basis of this record that the carrier's action in transferring the work from Sioux City and reducing the work force was unjust. The right of management to assign work in the interests of economy and efficiency, except as restricted by the terms of its agreement, has been recognized by various Board awards. Awards Nos. 1480, 2194, 2643, and 2916 (2nd Div.); Awards Nos. 2491, 5866 and 6944 (3rd Div.); Award No. 944 (4th Div.)." Award 3304 with Referee James P. Carey, Jr. followed the above referred to denial awards in denying a carman's case on the Missouri-Illinois Railroad Company. The findings of the award state: "The provisions of Article VII of the Agreement of August 21, 1954, did not remove or impair the force and effect of Rule 11 of the Agreement of September 1, 1949. Article VII deals with a situation where a mechanic is on duty and Rule 11 provides that a foreman may perform work where mechanics are not employed. The record supports the view that the carman's position at Salen, Illinois, was abolished because volume of work did not justify retention of two employes at that point. The carrier is not required by the agreements to retain a position when there is not sufficient work available to justify it. No violation of the applicable agreements being shown this claim lacks merit. AWARD: Claim denied.” The carrier, in the regulation of its business, turns to the National Railroad Adjustment Board to determine the correct interpretations of language used in agreements. The Second Division has found the language of Rule 29 allows carriers to eliminate unneeded mechanical forces and turn the remaining work over to foremen. The carrier has relied on the above referred-to award to do what was done in the instant case. The well-reasoned opinions expressed therein are equally applicable to the instant dispute and on that basis we respectfully request a denial award. 3. The employes allegedly adversely affected in the reduction Carmen F. T. Green and Davis George have been regularly employed as carmen at Hearne and have continued to receive compensation for service as such either at that point or Lufkin since June 23, 1959. Similar work was offered to BRCofA Local Chairman J. A. Russell; however, as pointed out before, he refused to leave Jacksonville because of his insurance business. He |