Award 19320
Docket 31731
NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
39 South La Salle Street, Chicago 3, Illinois
With Referee Munro Roberts, Sr.
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD TRAINMEN
UNION PACIFIC RAILROAD COMPANY (Eastern District)
STATEMENT OF CLAIM: "Claim of Yardman W. L. Amweg for one
day at pilots rate of pay, account Engineer W. B. McNeil handling switches
in connection with the movement of his engine to the train, January 29,
1952, North Platte, Nebraska."
EMPLOYES' STATEMENT OF FACTS: At approximately 1:00 P.1'1.,
January 29, 1952, road Engineer W. B. McNeil, was called for a westbound
train on departure yard track No. 1. The light engine with Engineer McNeil
in charge was received from the roundhouse by pilot at east end of the
yard. The east end pilot received instructions from. the ;l'ardmaster to
send the engine through departure yard No. 2 to be intercepted by Pilot
Hill at the west end of the departure yard, who would complete the task
of coupling the engine to the train on departure yard track No.1. At the
time Engineer McNeil arrived at the west end Pilot Hill was busy performing
other pilot duties to which he had been assigned. Engineer McN eiJ instructed
his fireman to run the engine, and he (McNeil) lined No. 2 switch, and
also No.1 switch, which was already properly lined for the movement out
of No. 2 track, and gave proceed signal to the fireman. As a result, the
engine was run through No. 1 switch, damaging the switch and delaying
movement in that part of the yard.
Account violation of schedule Rule 12 (e), Rule 30, and the Pilot Agreement, claim was filed by BofRT Local Chairman Shepherd, in behalf of
Yardman W. L. Amweg, who was first out on. the extra board, rested and
available to perform service. Claim was declined by timekeeper, superintendent, and J. T. Singent, Assistant to Vice President, for the reason that
Engineer McNeil had no instructions to perform this service, but did so
of his own volition.
Cabooses run through North Platte terminal.
POSITION OF EMPLOYES:
Rule 12(e) reads:
"The rights to preference of work and promotion will be govemed by seniority in the service, the yardman oldest in the service
[170]
171
19320-2
will be given preference if competent, but if considered not competent, he will be advised in writing if a letter is requested."
Rule 30 reads:
"YARD WORK. (a) Except as provided in Rule 31, the following shall be considered yard work at terminals where the yardmen's
schedule is in effect, and shall be handled by yardmen and be paid
for at not less than yard rates.
(b) The switching or transfer of all freight and passenger equipment operating exclusively within the yard and/or switching limits.
(c) The assembling and breaking-up of all trains or transfers
within the switching limits."
_ Pursuant to the Pooling of Caboose Agreement, the Pilot Agreement,
quoted below, was entered into by the Union Pacific Railroad Company,
and the Brotherhood of Railroad Trainmen, to relieve the head brakeman,
or other member of the train crew, from accompanying the road engine
to or from the train at terminals where the caboose runs through:
"AGREEMENT
between the
Union Pacific Railroad Co.- Eastern District
and the
Brotherhood of Railroad Trainmen
Pursuant to the 'Pooling Caboose Agreement' between the
Union Pacific Railroad Company, Eastern District, and the Order
of Railway Conductors and Brotherhood of Railroad Trainmen,
dated January 24, 1948, and in particular to Section 5 thereof
reading as follows:
'Where it is necessary to change engines at intermediate
or final terminals where the caboose runs through, no
member of the train crew will be required to accompany
the engine to or from the train.'
the following will become effective as of April 1, 1948:
(a) At intermediate or final terminals where locomotive is run
through, the head brakeman will accompany the locomotive
from and to the train where necessary to supply the locomotive with fuel and/or water.
(b) Yard pilot may leave outgoing train locomotive on or receive
incoming train locomotive from train track, or a track adjacent
to, or a track within the immediate vicinity of the inbound or
outbound train track.
The head brakeman may on inbound trains remove the train
locomotive from the train to a- track adjacent to or a track
within the immediate vicinity of the train track.
The head brakeman may on outbound trains move train locomotive from a track adjacent to or a track within the immediate
vicinity of the train track to the train.
19320--3
172
(c ) Yard pilots may be used, in addition to general yard pilot
duties, to handle switches and assist yard crews; and may be
used to fill vacancies created by accidents, illness, or failure
to report for duty until such time as an extra man may be
secured.
It is understood that engine herders at North Platte and
Cheyenne, as covered by agreement dated July 2, 1943, may
also be used as yard pilots as outlined in this agreement, in
which event they will receive yard pilot's rate of pay (engine
foreman's rate).
Engine herders at North Platte and Cheyenne having a seniority
date as engine herder prior to June 1, 1943 and now required
to perform service as yard pilot, in accordance with this agreement, in conjunction with their assignment as engine herder,
as provided by agreement dated July 2, 1943, will have prior
rights to those particular engine herder jobs.
Dated at Omaha, Nebraska, this 27th date of March 1948.
FOR THE UNION PACIFIC
RAILROAD CO:
/ s/ A. E. Stoddard
General Manager, Eastern District
FOR THE EMPLOYES: .
lsi A. D. Homan
General Chairman, B. of R. T.
lsi F. H. Harr
Vice-Chairman, B. of R. T.
/s/ Gail A. Clinkenbeard
Secretary, GGC, B. of R. T."
Seniority in railroad service is the preferential right to perform a
particular kind of work to the exclusion of all others who do not hold
seniority therein. Once established, seniority in such service may not be
arbitrarily taken away.
Rule 30 clearly defines what is to be considered as yard .work, and
establishes the type of work on which yardmen may exercise seniority under
Rule 12 (e).
The Pilot Agreement, quoted above, was negotiated, and certainly contemplated the use of yardmen to transfer road engines to and from the
trains, and, therefore, properly comes within the scope of yard service.
In Award 14024 your Board found:
"In declining the claim the carrier said, 'the crew elected to do
the work in the manner described of their own volition.' It would
seem to be the duty of the carrier to see to it tbat its employes not
engage in operations which violate agreement rules."
Your attention is directed to Award 15952, wherein a Union Pacific
Central District road crew performed switching within the switching limits
at Ogden Terminal without being instructed by a supervising officer to
perform that work. In rendering decision your Board ruled, in part:
"Does the fact that this switching was done as a voluntary act
by the road crew and for their convenience serve as a bar to the
claimants? We do Dot believe so. The mere fact that such was
19320-4
173
done without knowledge of the Ogden Railway is not sufficient to bar
this claim. The fact remains that work, to which they were entitled, was taken away from yardmen through no fault of the yardmen. The only remedy that can effectively be taken by these
employes, to halt such a practice, is to file a claim such as we have
before us now. On the other hand, the carrier has more than one
way available to combat practices such as this. Such may be accomplished by more adequate supervisory observance or by arrangements with the Union Pacific so that the Ogden Railway may be made
whole when claims are paid by them as a result of the action of
Union Pacific personnel." (Emphasis added.)
In a similar claim, which was allowed to lapse under the time limit
rule, because of insufficient time to prepare for submission, and which the
Carrier refused to hold in abeyance to be settled on the basis of the award
rendered in the instant claim, the local chairman presented the claim to the
superintendent, as follows:
"December 22, 1951
Mr. J. E. Mulick
Supt. Nebraska Division
pOl Leavenworth Street
Omaha, Nebraska
Dear 3ir:
I have had referred to me, for adjustment, the claim of P. A.
Barraclough for One days pay, pilot rate.
At 1 :40 pm. November 8, 1951 Engineer Frisbie stopped his
train, Extra 9022 in receiving yard #5. Pilot on duty was performing other work, in line with his duties, at the time. Engineer
piloted his engine to east bound running track, throwing 5, 4 and
running track switches.
It is the position of the committee that this creates a very
serious hazzard in view of the fact that movements in this part of
the yard are controlled from the hump.
Barraclough was rested and available and had made written
request for daylight work if possible. I therefore respectfully
request favorable consideration of this claim and recommend for
safety's sake that steps be taken to prevent a reoccurrence of this
incident.
Respectfully yours,
/s/ J. H. Shepherd
Local Chairman (yard 29)
1604 West 1st Street
North Platte, Nebraska "
The superintendent declined payment, stating as follows:
174
19320-5
"January 14, 1952
Mr. J. H. Shepherd
Local Chairman (Yard 29)
1604 West 1st Street
North Platte, Nebr.
Dear Sir:
Referring to your letter of December 22, relative to the claim
of yard Foreman P. A. Barraclough, for one day's pay at Foreman's
rate account Engineer Frisbie moving his engine to east bound running track without the aid of a pilot November 8, 1951, North
Platte.
Engineer Frisbie, had no instruction f'rom the yardmaster to
move his engine without a pilot, but did it on his own volition.
Action has been taken to prevent a reoccurrence of this kind.
Claim is respectfully declined.
Yours truly,
/s/ J. E. Mulick
J. E. Mulick
Superintendent "
The employes wish to point out the superintendent recognized the
Carrier's responsibility to see that its employes not engage in operations
which violate the agreement rules, when he stated: "Action has been taken
to prevent a reoccurrence of this kind".
Attached hereto, and listed as Employe's Exhibit A, is General Chairman Johnson's presentation of the Barraclough claim to Mr. J. T. Singent,
Assistant to Vice President, who declined payment, stating in part:
"Since the pooling of caboose agreement, instructions have been
very definite that at points such as North Platte, pilots will accompany engines to and from trains. If an engineer takes it upon
himself to violate those instructions without authority from a supervising officer to do so, it certainly does not obligate the management
to pay a penalty.
~
The Barraclough claim was also declined on the basis of Award 14623.
Yardman Barraclough neither being first out on the extra board, nor failing
to perform service on the day in question.
The above reference to the Barraclough claim is made for the express
purpose of directing the Board's attention to the fact that the Carrier was
aware of such violations, and after advising the employes that "Action had
been taken to prevent a reoccurrence", it was found that the violations
continued, and apparently the Carrier made no effort to enforce such
instructions.
The employes have shown the work complained of herein is yard work,
and should be performed by yardmen. We have also shown that it is
the responsibility of the Carrier to see to it that its employes do not engage
19320-6
175
in operations that violate agreement rules. It is also a known fact that
such violations were called to the attention of the Carrier, and the Carrier
was in possession of the knowledge that such violations were being committed, and ample time had elapsed for the Carrier to correct the condition
complained of herein.
The employes request an award sustaining their position.
All evidence herein contained has been presented to the Carrier in
either correspondence or conference.
CARRIER'S STATEMENT OF FACTS: Engineer W. B. McNeil on
January 29, 1952 was called at North Platte for a westbound freight train
for 12 :15 P. M.; engine was placed on train at 1 :20 P. M., and departed
at 2:01 P. M. Yard pilot accompanied the engine from the roundhouse
to the east end of departure track No.2. The engine moved light to the
west end of the track where another yard pilot would normally receive
the engine and place it on the train which was on departure track No. 1.
The west end pilot was occupied when Engineer McNeil arrived at
the west end of departure track 2, and to avoid further delay in placing
engine on the train, the engineer of his own volition handled two switches
and placed the engine on the train without waiting for a yard pilot to
accompany the engine from departure track 2 to the adjacent track, departure track 1.
The Organization contends the Carrier violated Rules 12(e) and 30
of the agreement between the Union Pacific Railroad Company and Yardmen represented by the Brotherhood of Railroad Trainmen, effective June
1, 1941 (hereinafter referred to as the "Agreement") which read:
Rule 12(e):
"The rights to preference of work and promotion will be governed by seniority in the service, the yardman oldest in the service
will be given preference if competent, but if considered not competent, he will be advised in writing if a letter is requested."
Rule 30:
"Yard Work. (a) Except as provided in Rule 31, the following shall be considered yard work at terminals where the yardmen's
schedule is in effect, and shall be handled by yardmen and be paid
for at not less than yard rates.
"(b) The switching or transfer of all freight and passenger
equipment operating exclusively within the yard and/or switching
limits.
H(C)
The assembling and breaking-up of all trains or transfers
within tbe switching limits."
They also contend the so-called "pilot agreement" dated March 27, 1948,
quoted at pages 2 and 3 of the Organization's ex parte submission was
violated.
19320-7
176
There are attached copies of correspondence between the Carrier and
the Organization, identified as follows:
Exhibit
Number
General Chairman J. R. Johnson's letter to Assistant
to vice President J. T. Singent, dated July 22, 1952
J. T. Singent's letter to J. R. Johnson, dated
September 30, 1952
"B"
"C"
POSITION OF CARRIER: Prior to April 1, 1948, road engines were
moved to and from freight trains by the head brakeman. Light engines
have always been moved between the freight yard and roundhouse by hostlers
and hostler helpers. The so-called "Pooling Caboose Agreement" dated
March 19, 1948, contains Section 5 reading:
"Changing engines - Intermediate and Final Terminals. Where
it is necessary to change engines at intermediate or final terminals
where the caboose runs through, no member of the train crew will
be required to accompany the engine to or from the train."
On March 27, 1948, the above-mentioned agreement was amplified
by the agreement quoted at pages 2 and 3 of the Organization's ex parte
submission.
Effective November 15, 1950, the agreement of March 27, 1948 was
revised, see Carrier's Exhibit "A".
The agreement of March 19, 1948 did not state how or who will
accompany engines to and from trains. The agreement merely provided
that:
"Where it is necessary to change engines at intermediate or
final terminals where the caboose runs through, no member of the
train crew will be required to accompany the engine to or from
the train."
The agreement effective November 15, 1950 listed certain terminals where
the head brakeman may be required to accompany the engine to and from
the train.
On January 29, 1952, Engineer McNeil was called for a westbound
freight train for 12 :15 P. M. A pilot accompanied the engine from the
roundhouse to the east end of departure track No. 2 where the engine
moved unaccompanied by a pilot to the west end of that track. Normally,
another pilot would meet the engine when it arrived at the west end of departure track No. 2 and move it to departure track No. 1 where the train
was assembled.
When the engine arrived at the west end of departure track No.2,
the west end pilot was busy and the engineer, of his own volition, moved
the engine to his train, which required the handling of two switches.
The Organization contends the Carrier violated Rules 12 (e) and 30
of the agreement. Rule 12 ( e) quoted at page 2 hereof accords yardmen
the right and preference to work in accordance with their seniority and
qualifications. Before there can be a violation of Rule 12 (e), the Organ-
19320-8
177
ization must prove the work in question is exclusively theirs under schedule
rules or practices. This they cannot do.
Brakemen have always handled engines to and from trains in certain
yards and hostlers and hostler helpers have always moved light engines from
the roundhouse to the freight yard in the North Platte yard. Road brakemen by agreement dated March 19, 1948 were relieved from accompanying
engines to and from their train when the engines are changed at the terminals
and the caboose runs through, but the agreement did not provide that yardmen would be assigned to move the engines to and from the trains. There
is no difference in the road engineman handling switches in the movement
of a light engine in a yard where yard service is maintained, than for a
hostler and hostler helper to handle switches in moving a light engine in
such a yard.
The Board's attention is directed to First Division, National Railroad
Adjustment Board, Award 16141. That award involved the same parties
that are in dispute in the instant case - and at the same location, North
Platte. In that case, the Organization filed a claim for a day's pay on behalf
of a pilot when hostler and hostler helper moved a light engine from the
roundhouse to the freight yard and returned to the roundhouse with another
engine. The Board denied the claim without prejudice.
The above demonstrates there was no violation of Rule 12(e) because
the work in question does not belong exclusively to the yardmen by agreement or practice.
The Organization contends Rule 30 quoted at page 2 hereof was also
violated. The movement of a light engine in and about a yard cannot be
considered as switching and does not come within the provisions of Rule 30.
The dispute in Award 16141 involved this identical question and the claim
was denied.
The Organization also contends that the pilot agreement dated March
27, 1948 was violated. That agreement, as previously stated, was revised
by the agreement effective November 15, 1950. Sections (a) and (b)
were added to the agreement dated March 27, 1948 to the effect the head
brakeman at certain terminals may be required to move the road engine
to and from the train, but there was no change made in Section (c) of the
latter agreement reading:
"Yard pilot may leave outgoing train locomotive on or receive incoming train locomotive from train track, or a track adjacent to,
or a track within the immediate vicinity of the inbound or outbound train track.
"The head brakeman may on inbound trains remove the train locomotive from the train to a track adjacent to or a track within the
immediate vicinity of the train track.
"The head brakeman may on outbound trains move train locomotive
from a track adjacent to or a track within the immediate vicinity
of the train track to the train."
The yard pilot performed service in the instant case in accordance with
the above Section (c). The engine was placed on an adjacent track by
a yard pilot. The head brakeman then could have properly moved the
19320-9
178
engine to the train. The pilot performed all the service he is entitled to
under the agreement. The agreement clearly permits employes other than
yardmen to move the road engine from an adjacent track to the train.
Therefore, there was no violation of the so-called "pilot agreement".
Assuming, but not admitting there was a violation of the Yardmen's
Agreement, there is no basis for the instant claim because Engineer McNeil
of his own volition handled two switches in moving the road engine from
an adjacent track to the train. However, to hold the Carrier is subject to
penalty payment under such conditions is not supported by schedule rules or
agreements. The circumstances cited in Award No. 12260 of the First
Division, National Railroad Adjustment Board, are parallel to the instant
claim. In that award, a locomotive of the Hermitage Portland Cement
Company performed switching in the Nashville Terminal Yard. In denying
the claim for a minimum yard day's pay for a yard crew, the Board in
its Findings stated:
"This case is unusual in that a claim has been filed on behalf
of extra men because they were not called to do an item of switching, although a switching crew was available and in fact completed
the work that forms the basis of the complaint.
"The dispute arose because a locomotive of the Hermitage
Portland Cement Company commenced a switching movement on
property which was part of the Nashville Terminal Yard. This
action was taken in order to secure cars for the cement plant. The
yard switch engine had been sent to do this work, but did not arrive
until some switching had been done by the crew from the cement
plant.
"The record does not show that anyone connected with the
railroad had ordered or acquiesced in the doing of this work by the
crew from the cement plant.
"Furthermore, no extra crew would have been called to do this
work, since a crew was available and actually did do part of it.
"The railroad should not be penalized for something it did not
order.
"The record does not permit an affirmative award."
In the instant case, no representative of the Carrier ordered or acquiesced
in Engineer McNeil's moving the engine to the train. Also, there was on
duty a pilot who would have performed the service, and no extra pilot would,
under any circumstances, have been called to perform this work.
The Carrier has shown that there was no violation of agreement Rules
12(e) and 30, nor was there any violation of the Pilot Agreement dated'
March 27, 1948, revised November 15, 1950.
In First Division, National Railroad Adjustment Board, Award 14638,
which involved a dispute between the yardmen on this property and the
Carrier because a hostler and hostler helper handled switches in the yard
'and on the main line in turning an engine on the wye at Denver, Colorado,
the Board in denying the claim in its Findings stated:
19320-10
179
"This case involved the movement of an engine, by a hostler
and hostler helper, from the roundhouse to the wye. The engine
was turned on the wye and returned to the roundhouse. We are of
the opinion that no .rule of the agreement has been violated by such
movement. No switching was performed although several switches
were handled by the hostler helper. It has been shown that it has
been the practice on this property for the past thirty years for
such work to be performed by hostlers and hostler helpers. Such
past practice, in absence of an agreement rule covering such
movements, shall govern."
The same agreement rules were involved in the above dispute as are involved in the instant case.
The Board's attention is also directed to First Division Award 15651.
In that particular case, the engineer departed the enginehouse and in moving
to his crew the engineer handled two switches. The Board denied the claim
and made the following statement in its Findings:
"Engineers' schedule does not prohibit engineers from throwing a switch on a light engine movement when engine is being
moved from engine house to another point in the yard to pick up
train crew."
The Carrier desires to make the following comments in connection
with the statements made by the Organization in its ex parte submission:
At page 4* the Organization refers to Board Awards 14024 and 15952
in support of their position in the instant claim. In those particular claims,
there was a switching operation involved in yards where yard service is
maintained. In the instant case, two switches were handled by a road engineer
in moving a light engine from an adjacent track to the train, which could
have been performed by the road brakeman as provided by the agreement
effective November 15, 1950. This cannot be considered as switching and
the yardmen on the Carrier's property do not have the exclusive right to
handle switches in moving light engines in and about tile Carrier's North
Platte yard.
At pages 5 and 6, the Organization refers to a claim for a mmnnum
day at the foreman's rate of pay on behalf of Yardman Barraclough because
an engineer in the North Platte yard handled switches in moving his engine
from the train to the roundhouse. The claims are not comparable. In the
Barraclough claim, the engine was moved from the train to the roundhouse
without a pilot, whereas in the instant claim the engineer merely moved
the engine from an adjacent track to the train.
CONCLUSION:
The Carrier has shown that the yardmen do not have the exclusive
right to handle switches in the North Platte yard; that the movement of
light engines within a yard is made by the hostler and hostler helper and
such movement cannot be considered as yard switching; that the so-called
"pilot agreement" relieved road brakemen from accompanying their engines
*Unless otherwise indicated, page references hereafter are to tile
Organization's ex parte submission.
19320-11
180
to and from the train, but it did not automatically assign all such work to
pilots; that it is permissible for a brakeman to move a Iight engine from
an adjacent track to the train and therefore it cannot be considered a violation when enginemen move a light engine from an adjacent track to the
train.
There was no violation of schedule rules, agreements or practices and
the Carrier requests the Board to deny the claim.
EMPLOYES' REPLY TO CARRIER'S ANSWER: On page 3 of its
answer to the employe's ex parte submission the Carrier in its "Position"
states, as follows:
"The agreement of March 19, 1948 did not state how or who
will accompany engines to and from trains."
The position taken by the Carrier throughout its submission, wherein
it is contended that the handling of road engines to and from the train at
terminals where the caboose runs through, is ridiculous.
At the time the Pooling of Caboose agreement was negotiated it was
understood that yardmen would handle the road engines to and from the
trains, and the agreement covering yard pilot service was negotiated. All
pilot assignments were made from the yardmen's roster. Numerous claims
have been paid to yardmen account other than yardmen performing this
service. The so-called "Pilot Agreement" was incorporated in the reprint
of the yard schedule which became effective September 1, 1953.
The employes also direct the Board's attention to page 6 of the employe's ex parte submission wherein a portion of the Carrier's declination in
the Barraclough claim is quoted. It will be noted the Carrier stated:
"Since the pooling of caboose agreement, instructions have been
very definite that at points such as North Platte, pilots will accompany engines to and from trains." (Emphasis added.)
The quotation alone is sufficient to establish that the handling of road
engines to and from trains is work properly within the scope of the yard
agreement, and considered "yard work". Others can perform this service
only to the extent provided for in the pilots agreement, which permits the
head brakeman to move the train locomotive from a track adjacent to or
a track within the immediate vicinity of the train track to the train. The
agreement specifies the head brakeman. If the use of hostlers and engineers was contemplated why does the. agreement specify yard pilots and
head brakemen?
Notwithstanding the above, the Carrier will not deny the so-called pilot
agreement of Novemher 15, 1950 was incorporated in the reprint of the yard
schedule, and entitled, ''Yard Pilots -Moving engines to and from trains".
At the bottom of page 4 and top of page 5 of its answer to the employe's ex parte submission the Carrier states:
"Road brakemen by agreement dated March 19, 1948 were
relieved from accompanying engines to and from their train when
the engines are changed at the terminals and the caboose runs
19320-12
181
through, but the agreement did not provide that yardmen would
be assigned to move the engines to and from the trains."
The employes direct the Board members attention to page 9 of the
Carrier's answer to the employes ex parte submission in Docket 30690 now
pending before your Board, wherein the Carrier states as follows:
"The agreement effective November 15, 1950 modifying the
agreement effective April 1, 1948 contains the above-quoted section
verbatim. When the cabooses were pooled effective April 1, 1948,
it was contemplated that cabooses would be run through Cheyenne
yard and pilots were placed at that terminal to accompany engines to
and from trains."
The employes point out that in Docket No. 28509 now pending before
your Board, the Carrier also took an entirely different position on this
matter, and the employes will show that the Carrier recognized that piloting
engines to and from trains in accordance with the agreement of April 1,
1948 is work properly belonging to yardmen.
On page 17 of the joint submission in Docket 28509 the Carrier states
in its "Position":
"It would be revolutionary now to hold that a yardman is entitled to an additional day's pay for performing incidental service
during his regular tour of duty when it is recognized by the Organization and Ute Carrier that the service belongs to the yardmen."
(Emphasis added.)
The above quotation is a far cry from the position taken by the Carrier
in the instant case.
On page 24 of the joint submission in Docket 28509 the Carrier
asserts:
"The claims should be denied by your Board for the following
reasons:
1.
Piloting of engines at the time of the alleged violation properly
belongs to yardmen and it was performed by them."
(Emphasis added.)
On page 33 of Docket 28509 the Carrier in its rebuttal statement states,
in part:
"When the Pooling Caboose agreement was placed in effect,
April 1, 1948, a representative of the Carrier and the Organization
reviewed each terminal and it was distinctly understood at that time
where pilots would be assigned. Hastings was a terminal where
engines were scheduled to run through and it was understood no
pilots would be assigned. at that terminal. When engines were cut
out at Hastings and another engine used on the outgoing trip, the
yardmen would accompany the engine from the coal chute to the
train. Yardmen have performed this service but the Organization
contends the Carrier must use the entire crew and cannot use a
foreman to perform this incidental pilot service while the balance
19320-13
of the crew remains idle.
basis. "
182
Such a contention is without any sound
On page 35 of the same submission the Carrier takes the following
position:
"It was recognized this was work belonging to yardmen and
they performed the work."
It is inconceivable that the Carrier would repeatedly take the position
in Dockets 30690 and 28509 that the movement of engines to or from trains
was work properly belonging to yardmen, and in the instant docket steadfastly maintain that it was never contemplated that yardmen would perform
this service, and that it could properly be performed by hostlers, engineers,
or other employes.
The Carriers contention that the agreement does not provide that
yardmen would be assigned to move engines to and from the trains is pure
fantasy.
The Carrier, on page 5 of its answer to the employes ex parte submission,
directs the attention of the Board to Award 16141, and states, in part:
"In that case, the Organization filed a claim for a day's pay on
behalf of a pilot when hostler and hostler helper moved a light
engine from the roundhouse to the freight yard and returned to
the roundhouse with another engine."
The employes wish to direct the attention of the Board members to the
statement of claim in Award 16141. You will find the date was May 3, 1947,
which was prior to the time the pooling caboose agreement and pilot agreement were negotiated to become effective April 1, 1948.
It is assumed that the Board denied the claim in Award 16141 for lack
of a specific rule governing the situation. Since that time a specific rule
has been negotiated on this property, namely, the Pilot Agreement of March
27, 1948, and revised November IS, 1950.
On page 6 of its answer the Carrier argues to the effect that even if
it is determined by the Board that the service performed by Engineer McNeil
was yard work constituting a violation of the yard agreement, the Carrier
should not be held responsible for the action of its employes. Such reasoning is basically unsound, and in direct confiict with numerous decisions of
the Board, Interstate Commerce Commission, and Court rulings.
The circumstances in Award 12260, cited by the Carrier, are not
remotely similar or parallel to the instant claim. While it was never contended that the factual circumstances in Awards 14024 and 15952 cited by
the employes were identical to the instant claim, the employes feel the dispute in those cases sufficiently similar to the instant claim to render a like
decision.
The Carrier also cites Award 14638, which was a dispute on this property, involving the same parties as the instant dispute. However, the factual
circumstances were entirely different.
The hostler and helper in that
case were not relieving the head brakeman, nor was the engine enroute to
or from the train. It is also noted the claim in Award 14638 was made
19320-14
183
under date of January 9, 1945, or some three years prior to the time the
Pilots Agreement was made' effective. It is also noted the Board found in
part that it had been the practice for a number of years for such work
to be performed by hostler and helper, and "* * * such past practice, in
the absence of an agreement rule covering such movements, shall govern."
In the instant case no showing was made that it had been the past
practice for engineers to pilot their engines to and from the trains. On
the contrary, it has been shown that since the Pooling Caboose agreement,
and the Pilot Agreement of April 1, 1948, it has been the practice to use yardmen to pilot engines to and from the trains, for which they are compensated
at the engine forman's rate of pay. Moreover, there is uo absence of an
agreement rule covering the movement in the instant case. The Pilot
Agreement was negotiated for the express purpose of determining that pilots
would perform the service previously performed by the head brakeman.
After quoting the findings of the Board, on page 8 of its answer, the
Carrier asserts:
"The same agreement rules were involved in the above dispute
as are involved in the instant case."
The statement by the Carrier is not a true fact, and it will be a simple
matter for the Board members to determine that the Pilot's Agreement was
not then in existence and was not made a part of that dispute, therefore,
the same agreement rules are not involved.
It is interesting to note that after the pilot agreement was made effective
on April 1, 1948, the Carrier established pilot assignments for its North
Platte yardmen, to handle road engines to and from the train. The number
of pilot assignments have fluctuated to a slight degree account slow down
in business, but at the present time there are twelve regularly assigned
yard pilots (engine foremen) to perform this work, and at no time since
the inception of the pilot rule has this figure been less than nine or ten.
The findings in Award 15651 cited by the Carrier are not applicable
to the instant case, inasmuch as the claim was made by an engineer, and
based on the engineer's schedule, which did not prohibit him from throwing
switches, whereas in the instant dispute the claim was filed by a yardman
whose schedule provides that yard pilots will perform the pilot's work, except
in certsin instances where the head brakeman is permitted to set the engine
from the train to an adjacent track or vice versa.
.
On page 9 of its answer the Carrier has attempted to show that the
Barraclough claim and the instant claim are not comparable:
"At pages 5 and 6, the Organization refers to a claim for a
minimum day at the foreman's rate of pay on behalf of Yardman
Barraclough because an engineer in the North Platte yard handled
switches in moving his engine from the train to the roundhouse. The
claims are not comparable. In the Barraclough claim, the engine
was moved from the train to the roundhouse without a pilot, whereas
in the instant claim the engineer merely moved the engine from an
adjacent track to the train."
It is almost amusing to test the consistency of the Carrier's argument
by reading the above paragraph, and then turning back to pages 6 and 7
19320-15
184
where the Carrier attempted to show that the circumstances in Award 12260,
which involved a locomotive of the Hermitage Portland Cement Company,
performing switching in the National Terminal yard, was parallel to the instant claim. Yet on page 9 the Carrier declares the Barraclough claim,
which involved the very same rules and factual circumstances, in the same
yard, on the same carrier, is not comparable.
In conclusion, the employes have shown that the work herein complained of is a violation of rules and agreements in effect. That since the
Pooling of Cabooses in 1948, it has been the practice to use yard pilots
(engine foremen) to pilot road engines to and from the train. There is in
evidence, an agreement, known as the "Pilot's Agreement", governing the
movement of engines to and from trains, which has been, and is, a part of the
schedule of rules governing yardmen. The employes have shown, through
reference to the Barraclough claim, that the Carrier was aware that such
violations were being committed, and agreed to take steps to prevent a
re-occurrence, which it failed to do. The employes have shown that since
the time the Board cases referred to by the Carrier were submitted, that an
agreement Was negotiated on the property governing the movement of road
engines to and from the train, and, therefore, those awards are not in
point.
The Carrier permitted its employes, namely, Engineer McNeil, to violate
the yardmen's agreement with the full knowledge that such violations had
been protested, and after the time the Carrier agreed to take action to prevent are-occurrence.
The employes request an award sustaining their position.
All evidence herein contained has been presented to the Carrier in either
correspondence or conference.
(Exhibits not reproduced.
Page references relate to original documents.)
FINDINGS: The First Division of the National Railroad Adjustment
Board, upon the whole record and all the evidence, finds that the parties
herein are carrier and employe within the meaning of the Railway Labor Act,
as amended, and that this Division has jurisdiction.
Hearing was waived.
In its brief the carrier states that there are three points in dispute:
1.
Whether the work involved (that of moving a light engine
through two switches to a train on an adjacent track) belongs
exclusively to yardmen.
2.
Without admitting that the action of the engineer in moving
said light engine Was improper, the carrier neither ordered
nor acquiesced in the engineer moving the engine to the train
and therefore the carrier should not be subject to penalty
payment.
3.
Since a pilot was on duty to perform the work in question and
would have performed the work in question had the engineer
waited a bit longer, an extra pilot would not have been called
to perform the work.
19320-16
185
As to the first point, the record shows clearly that pilots were employed
to do the work that was done by the engineer, and whether or not the
agreement between the carrier and the Union gives such work exclusively
to yardmen, the carrier by employing pilots to do the work has acknowledged
that such work should, under the circumstances, have been performed by a
pilot.
As to the second point, there can be no question but what the engineer threw the switches involved on his own volition and without being
ordered to do so by the carrier. The carrier states that it did not acquiesce
in the engineer throwing the switches. If such was the case, it would appear
that the carrier would have brought charges against the engineer for violating
orders and that these charges would be cited in this record. We find no
such evidence.
As to the third point, there can be no question but what the claimant in
this case would not have been employed to throw the switches in moving
the engine in question, since the evidence is undisputable that there were two
pilots on duty.
However, the Union must have a way of policing its agreement with
the carrier and it appears that under a long line of awards by this Division
the Board has found that the way is to compel the carrier to compensate
.for rule violations. While the carrier cites awards to the contrary, we
think that the great weight of authority is that where the evidence is clear
that a rule has been violated, and claimant was available to do the work involving the rule violation, the claim must be sustained.
The carrier cites Award 16141 (Docket 26278), which was decided by
this Division without a Referee, in support of its position that the claim before us should be denied. However, in that case (involving the same parties
as here) the carrier in its submission states:
"Under the 'Engine Herder Agreement' there has never been
any question but that an engine herder would be used to move road
locomotives between the roundhouse and the passenger station at
North Platte and if such locomotives were moved between the roundhouse and passenger station only by hostler and hostler helpers and
there was an extra yardman available and not used, he would be
allowed a minimum yard day's pay at the appropriate engine herder's
rate of pay."
In the case last referred to a hostler and a hostler helper had the right
under the rules to move the light engine from the roundhouse out onto a
track and throw the switches necessary in connection with that movement
and pick up another light engine and take it to the roundhouse. Since
this was work normally done by hostler and hostler helper, the Board, without Referee, found:
"Without prejudice to the agreement, the Division finds that an
affirmative award in this particular case is not warranted."
In the case before us, a road engineer moved his engine to his road
train and by the carrier's own admission in Docket 26278, a sustaining award
must be ordered.
186
19320-17
As was said by this Division in Award 11869, Referee William H. Spencer
assisting:
"The claim here presented may seem trivial. It must, however,
be remembered that the protection of the sanctity of the rules
against major infractions is attained in large part by their protection against minor infractions, and in this instance we must
sustain the claim."
AWARD:
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of FIRST DIVISION
ATTEST: J. M. MacLeod
Executive Secretary
Dated at Chicago, illinois, this 14th day of October 1959.