PUBLIC LAW BOARD 6721
In the Matter of the Arbitration Between:
BURLINGTON NORTHERN SANTA FE NMB Case No. 11
RAILWAY COMPANY Claim of A.A. Leon
and W.R. Schwietzer
and Basic Day's Pay for Work
not in Connection with
UNITED TRANSPORTATION UNION with Their Assignment
STATEMENT OF CLAIM: On April 7, 2004, the claimants [A. A. Leon
and W. R. Schwietzer] were required to couple air hose between
the locomotive consist to a cut of cars, double over this cut of
cars, couple the last air hose for the road crew, and then
perform an air test for Q-SBDCH16-07. Once this service was
performed a road crew departed the terminal with said train.
FINDINGS OF THE BOARD: The Board finds that Carrier and
Organization are, respectively, Carrier and Organization, and
Claimant Employees within the meaning of the Railway Labor Act,
as amended, that this Board is duly constituted and has
jurisdiction over the parties, claim and subject matter herein,
and that the parties were given due notice of the hearing which
was held on July 2, 2004, at Washington, D.C. Claimants were not
present at the hearing. The Board makes the following additional
findings:
The Carrier and Organization are Parties to a collective
bargaining agreement which has been in effect at all times
relevant to this dispute, covering the Carrier's employees in the
Trainman and Yardman crafts.
The Board makes the following Additional Findings:
A second shift yard service (Y-SB201) was established at the
terminal located in San Bernardino, California. A primary
function of this assignment is to switch cars and ready trains
for movement.
On April 7, 2004, Claimants reported on duty at 15:01 hours
for their assignment as yardmen on Y-SB2O1. They were responsible
for building train Q-SBDCH1G-07. Claimants were required by
Management to take locomotives from the round house and couple
them with air to a cut of cars on Track 225. The locomotive
consist was used to set the cars on Track 225 over onto Track 212
where another coupling with air was made with the cars on that
track. Claimants hung and tested the End of Train Device (ETD)
and completed an air test, as Management instructed. The work
was completed prior to 22:30 hours. Upon completion of this
work, a road service crew, which was called to report at 22:30
hours, took responsibility for the outbound train and its
departure.
Rule 13 of the Governing Agreement provides, in part, that
Yardmen will not be required to couple or uncouple air hoses
without additional compensation except for specified exceptions,
nor will they required to couple air hoses for road crews.
Article VIII, Section 3 of the October 31, 1984 National
Agreement reads:
Section 3 - Incidental Work
(a) Road and yard employees in ground service and
qualified engineer service employees may
perform the following items of work in
connection with their own assignments without
additional compensation:
Article VIII, Section 3 contains no specific penalty
provision for violation of its requirements.
* * *
(6) Bleed cars to be handled
(7) Make walking and rear-end air tests
* * *
A Memorandum of Agreement dated December 31, 1994. The
Agreement provides in part:
IT IS AGREED:
* * * when a yardman with a ground service
seniority date prior to January 1, 1995, is a
member of a ground service yard crew that
handles one or more ETDs/ETMS during a tour
of duty, that employee will be paid one hour
at the appropriate rate of pay. When a
roadman with a ground service seniority date
prior to January 1, 1995, is a member of a
ground service road crew that handles one or
more ETDs/ETMs during a tour of duty at any
one or more of the locations listed on
Attachment A, he will be paid one hour at the
appropriate rate of pay. These payments will
be made on a without prejudice basis. Payroll
records indicate Claimant Leon received one
hour's pay in addition to his regular pay for
being required to handle an ETD during his
assignment pursuant to the 1994 Agreement.
Claimant Schwietzer did not receive
additional pay for the ETD work under the
1994 Agreement since his seniority was
subsequent to January 1, 1995.
In due course, a penalty claim was presented on the basis
that the Claimants were instructed to perform work on an outbound
train which was not in connection with their own assignment. The
claim stated in its entirety:
Claim one basic [day] account required by ATM
and Trainmaster to use the road power for the
Q-SBDCH16-07 BNSF 736-893-722 to couple the
engines of the road power consist and make
the air hose coupling on Track #225 and the
double over to Track #212 and make the last
air hose coupling between the two tracks for
the road crew. The west car in Track #225
was (DTTX 727126) and the east car in Track
#225 was (TTEX 161110) this is in direct
violation of Article 13 of the Coastlines
Switchmen's Agreement. Second we were
required to make an initial terminal air
brake test, and this was done for the road
crew not in connection with this yard crew's
assignment. Once we were done with the air
test the road crew departed with this train.
We at no time advanced, moved or switched
this train after the air test was completed.
This is in violation of Article VIII Section
3 of the October 31, 1985 National Agreement.
(Org. Ex. 1, p.1)
Carrier declined the claim as without merit; the
Organization appealed the denial, but without resolution; and, as
the claim was not resolved on the property, it was presented to
this Board for resolution.
POSITIONS OF THE PARTIES: The Organization argues that
coupling air hoses between the locomotives and cars, doubling
over a cut of cars, coupling the last air hose and performing an
air test was work improperly assigned to Claimants. It contends
the Claimants were directed by Management to perform work which
was not in connection with their own yard assignment in violation
of Article 13 of the schedule agreement and Article VIII, Section
3 (a) of the October 31, 1985 National Agreement.
The Organization points to the phrase, "in connection with
their own assignment" from Article VIII, Section 3 of the 1985
National Agreement to argue that, since the work performed by the
Claimants belonged to the outbound road crew, the Carrier's
assignment of the work to the year crew was improper. It argues
this was the road crew's work because the Claimants used the road
crew's locomotive consist and that the train was immediately
turned over to the road crew after the air test was performed by
the Claimants.
During the oral presentation, the Organization contended
that the changes in the Federal Railroad Administration's
regulation attributed to Carriers's use of yard crews to relieve
the road crews of the initial terminal air test for outbound
trains. It argued further that the air test was not performed by
Claimants for any reason other than to expedite train movement
and not as part of their own assignment.
Precedent cited by the Organization includes Case Nos. 14
and 25 of Public Law Board 6390, Case No. 12 of Public Law Board
3691, Case No. 738 of Special Board of Adjustment 910, Case No.
38 of Public Law Board 5392 and First Division Award No. 24856.
The Organization argues Carrier's action violated the cited
agreements and that Claimants are due a basic day's pay each. It
requests the claim be sustained.
The Carrier maintains Claimants' basic assignment as
yarcimen, is to switch, build and make trains "road ready" at the
San Bernardino terminal. All of the work performed by Claimants,
argues the Carrier, was in connection with their own assignment
on Y-5B201 to build train Q-SBDCHl6-07 for departure. Carrier
points out that no BNSF Carmen were employed at the facility. It
contends the Claimants were not assigned to assist any other crew
except as their own assignments included such assistance.
The Carrier argues that Article 13 cited by Organization was
superseded by the subsequent 1985 and 1994 Agreements which
amended Article 13. Carrier contends that, in order to properly
test the ETD, it was imperative for the Claimants to couple all
air hoses between the engines and the ETD, including the air hose
between the cars doubled together. Likewise, Carrier insists the
initial terminal air test on the train was a permissible
assignment of work in Claimants' yard job.
According to the Carrier, the 1985 National Agreement and
the 1994 Agreement allowed Management to require yard employees
to perform the disputed work in connection with their own
assignment, subject to the payment of one hours' additional
compensation for employees with specified seniority. Carrier
points out that Claimant Leon received an allowance of one hour
for handling ETD' s in addition to his other pay as specified in
the 1994 Agreement and Claimant Schweitzer did not receive this
allowance for ETD work because he is a post-January 1995
employee.
The Carrier argues that the Organization relies upon
precedent which is faulty for two reasons: the cited awards
either predated the 1985 National Agreement, or the air hose
couplings in those cases were not made in connection with the
performance of any other duties of the claimants therein.
In addition to Arbitration Board 419 to support its
position, Carrier cites Award No. 7 of Public Law Board 6031,
Award No. 1 of Public Law Board 5093, Award No. 16 of Public Law
Board 5059 and Award No. 4 of Public Law Board 5019.
Finally, the Carrier asserts that the claim for a basic
day's pay on behalf of Claimants for coupling the last air hose
was made moot by Article VIII, Section 3(b) (6) of the 1985
National Agreement because it clearly provides that no additional
compensation will be required for such work.
The Carrier concludes there is no merit to the claim and
urges that it be denied.
DISCUSSION AND ANALYSIS: Upon the whole of the record and in
consideration of the arguments of the Parties, the Board finds
that the Organization did not meet its burden of proof in this
dispute to establish a violation of the applicable agreements.
The Award so reflects.
This is an intra-craft claim about the performance of work
which may be performed by either yard or road employees who are
covered by the same agreements. The Board finds there is no
evidence to suggest that the work at issue is exclusively
assigned by agreement to either group of employees.
The record establishes that subsequent to adoption of
Article 13 of the schedule agreement, the Parties negotiated
flexibility of work between yard and road crews. All of the
disputed work falls within the parameters of the Incidental Work
provision of the 1985 National Agreement and the 1994 Agreement
in respect to handling ETDs.
According to those agreements, the work at issue may be
performed by either crew. The general scope or classification of
work assignable to each crew (without compensation or, in
connection with ETDs, with specified compensation) is defined by
whether or not the items of work performed are in connection with
their own assignments. If the work assigned to the crew is in
connection with their assignment, with the exception of handling
ETDs, it may be performed by the crew without additional
compensation. Consequently, each case must be viewed in light of
the particular circumstances surrounding the involved employees,
crews and their assignments. While the awards cited by the
Parties gave a general foundation for the dispute, none of the
awards are directly on point with the fact patterns of the
pending claim.
In the instant matter, Claimants reported for duty at 15:01
hours and received their work assignment to make ready train Q-
SBDCI-{16-07. Neither carmen nor the crew of the outbound train
were on duty at this time. No carmen were employed at San
Bernardino and the road crew did not report for duty until 22:30
hours. The Board is persuaded that the road crew did not have
and could not have had responsibility for the train until after
the Claimants had completed their work, which included, the Board
finds, testing the ETD and performing an airtest. Under these
circumstances, concludes the Board, the Carrier was not
restricted by the cited agreements from assigning the Claimants
the tasks associated with building and preparing train Q-SBDCH16-
07 for its departure. The Board is persuaded by Carrier's
argument that all of the work was an incidental and necessary
part of the Claimants' own yard assignment.
The locomotive consist obtained from the round house by the
Claimants was used by them to perform switching work. The
locomotive consist did not become the road crew's consist until
that crew took responsibility for their train. Moreover, the
Organization did not identify a contractual right of the road
crew to perform the initial terminal air test. The fact that the
Claimants ended their work assignment by performing an air test
did not convey any right to that same work to the road crew.
While initial terminal air tests may have once been performed by
road crews pursuant to Federal Railroad Administration
regulations, according to the Parties, that requirement no longer
exists.
Missing from the record is the evidence to substantiate the
Organization's position that any of part the disputed work
belonged by agreement to the road crew rather than the Claimants.
In work jurisdiction matters of this kind, the moving party bears
the burden of proof to establish the merits of its claim. For
the reasons stated herein, the Board holds that the insufficient
evidence to establish that the work performed by the Claimants
should have been performed by someone else and thereby the
Organization has not satisfied its burden of proof.
AWARD: The Organization failed to prove that the Carrier's
assignment of work without any further additional payments was in
violation of its rights under the applicable agreements. The
claim is denied.
Dated this 27 day of December, 2004.
M. David Vaughn, Neutral Member
Gene L. Shire, Carrier Member |