PUBLIC LAW BOARD 6199

Transcription

1 PUBLIC LAW BOARD 6199 In the Matter of the Arbitration Between: CSX TRANSPORTATIO~, INC. (Former Louisville & Nashville Railroad Company) and NMB Case No. 39 Claim of J.B. Smith BROTHERHOOD OF LOCOMOTIVE ENGINEERS STATEMENT OF CLAIM: Claim of Engineer J.B. Smith for eight hours penalty allowance account instructed to board his outbound train at Mobile, Alabama at a location outside his designated seniority district. FINDINGS OF THE BOARD: The Board finds that the Carrier and Organization are, respectively, Carrier and Organization, and Claimant (s) 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 April 16, 2001 at Jacksonville, Florida. Claimant was 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 Engineer's craft. Claimant, an M&M Seniority District engineer, was called at Mobile, Alabama on October 21, 1997 to operate a northbound assignment to Montgomery. He was instructed to take charge of his train on the main line at Mile Post (Brookley Siding), a point the Organization contends is within the NO&M seniority district, before proceeding north through Mobil Terminal's Sibert Yard to Montgomery. In due course, a penalty time claim for eight (8) hours additional allowance was presented on the Organization's allegation that Claimant was used off of his designated seniority district in violation of schedule rules. As the matter could not be resolved on the property, it is now before the Board for disposition. POSITIONS OF THE PARTIES: The Organization argues that the Carrier violated the applicable Agreement. It cites Article 26, Section 10 of the controlling Agreement (Organization Exhibit B), which

2 Page No. 2 states: Except in case of emergency, engineers will not be used off the division to which assigned. The Organization asserts that the M&M Seniority District (covering engineers operating north out of Mobile) and the NO&M Seniority District (covering engineers operating south out of Mobile) meet at Duval Street (Mile Post 669.8), a point 2/10ths of a mile north of Brookley where Claimant took over his train on October 21, ' The Organization rejects Carrier's argument that because the north end of Brook1ey Siding (and the adjacent main line) are located within switching limits of Mobile Terminal's Sibert Yard, Claimant was not actually used off of the only seniority district designated to cover northbound trains out of that Terminal. During the handling of the dispute on the property, the Organization pointed out to the Carrier that the south Yard Limit at Sibert, located at Mile Post 670.1, albeit inside Brookley Siding, is still south of Duval Street, and as such, Claimant was clearly outside his own seniority district when he was instructed to assume control of his train at Brook1ey on the date of claim. The Organization further asserts that the penalty claimed for Carrier's alleged violation of Article 26 is warranted, citing, among others, Award 16 of PLB 2627 sustaining a claim under similar conditions (Seidenberg, Organization Exhibit F). It urges that the claim be sustained and relief awarded. The Carrier denies that Claimant was used off his seniority district. It contends that, "Sibert Yard is the terminating point for southbound crews arriving from Montgomery (M&M District) and for northbound crews arriving from New Orleans (NO&M District)U (Carrier submission at page 1). Carrier points out that the south end Sibert Yard limits are located inside Brookley Siding (and its adjacent main line where Claimant's train was parked), and as such, it contends that Claimant was, for all intents and purposes, still within his designated seniority district when he took over his assignment at that location. 1 The Organization cites a Local Agreement dated July 1, 1981 (Organization Exhibit D), in which uniform standard trip miles were established for M&M Seniority District crews operating between Mobile and Montgomery. In that Agreement, trip miles afforded M&M crews operating in that corridor were calculated with Duval Street as the southernmost point on the run.

3 Page No. 3 The Carrier acknowledges similar ongoing practices at Mobile, informing the Board that trains parked at Brookley, either on the main line or in the siding, are run-through trains involved in a ~step-off, ~step-on" quick crew change operation (Carrier submission at page 12). However, Carrier argues that the Organization has failed to establish that this practice actually deprives NO&M crews of work rightfully belonging to them. Consequently, Carrier maintains that the spirit of Article 26 has not been violated. In support, Carrier cites, among others, First Division Award (Daugherty) which states:...no one can deny that claimants moved about 160 feet beyond the yard board marking the limits of their own seniority district and that therefore there was perhaps a technical violation of the literal language of said Rules. But this is too simple and superficial an answer. It fails to probe behind said language for the basic intent of the parties when they wrote the language. It fails also to apply a cardinal tenet of contract construction, namely the rule-of-reason principle that, if alternative constructions are possible, the more reasonable one should be selected. That is, it fails to apply the principle that, if possible, contract language should not be interpreted so as to achieve a result that might be called peculiar or absurd. Consider again, then, the language of Rules 82 and 85. Agreed-on lapover runs and non-availability of engineers on another district are the tow exceptions to said Rules' limitation. The very nature of these exceptions persuades that, when the parties wrote said limitation, their fundamental intendment was to prevent the engineers of one seniority district from doing the work that would properly belong to the engineers of another seniority district. (Emphasis added)... In no sense could they be said to have intruded on work belonging to Huntington District engineers. The basic purpose of Rules 82 and 85 was not flouted.... In the second place - and related to the first - the Division is not saying that mere distance as such (156

4 Page No.4 feet, as here) is of great significance. To so say would be to set some limit (from zero to X-thousand feet) and thus to write a new rule. The Division has no authority to say that an infringement of any number of feet is permissible. In short, all that the Division is now holding is that, when in the instant case this carrier caused these claimants briefly to trespass a few feet on to another seniority district so that they might finally dispose of their engine after yarding their train, said carrier did not they violate the real meaning and intent of the Agreement. Carrier also cites First Division Award No (Zumas), which similarly concluded: The record discloses that (claimant therein) did, in fact, operate his locomotive outside the switching limits, on to trackage of another seniority district. However, we are of the opinion, that the requirement to do so was not violative of the basic intent of the seniority rules. The engine movement necessary to completing his day's work in road service did not deprive anyone in the other seniority district of work that could properly be said to belong to the latter... The 'technical' violation which occurred in this instance does not defeat the basic intentions of the rules in effect between the parties.. In further support, Carrier directs the Board to PLB 575, Award 23 (Hanlon); Public Law Board 6018, Award 4 (Rinaldo); Public Law Board 2590, Award 74 (Van Wart); Public Law Board 4450, Award 49 (Eichen). Carrier concludes that even if it were to concede Duval Street as the literal line of demarcation between M&M and NO&M Seniority Districts (and it does not so concede), it did not violate the intent of Article 26 cited above by the Organization. Carrier further maintains that it ~cannot overemphasize the operational necessity of the move" at issue in this case (Carrier submission at page 12). Carrier insists that NO&M engineers are not harmed by its designation of Brookley Siding (and adjacent main line track), a portion of which lies within Mobile Terminal switching limits, as a change-over location for crews from both districts heading north and south out of Mobile. On that basis, Carrier asks the Board to deny the claim in its entirety.

5 Page No. 5 DISCUSSION AND ANALYSIS: Territorial restrictions on seniority in this industry are jealously (and rightfully) guarded, and for that reason deserve careful scrutiny when questions of application are presented. In this case, it appears that Carrier has violated the literal language of Article 26. The record establishes that, at least for pay purposes (certainly a viable criteria), Carrier considers Duval Street the actual location within the Mobile terminal where the NO&M Seniority District and the M&M Seniority District converge. In that sense, Claimant was, indeed, required to proceed to a point 2/10ths of a mile south of his home seniority district to take possession of-his train on October 21, Nevertheless, the Board is persuaded that the core issue is whether the intent of Article 26 was violated under present circumstances? Based on the prior authority cited by the Carrier, The Board concludes that it was not. The work performed by Claimant in this case did not, in fact, trespass upon the work rights of NO&M engineers, even though his person and his train were still in their territory when he took charge of it on October 21, Claimant, an M&M District engineer, was assigned to operate a northbound train over M&M District territory between Mobile and Montgomery, and that is precisely what he did on the date of claim. The Board points out that even if an NO&M engineer had wanted to perform this service, he would have been prohibited from doing so under the very Article the Organization relies upon here. On this point, then, when taken to its logical conclusion, the Organization expects one thing only: Carrier must alter its operation to the extent that crew changes must always take place right at Duval Street. To do otherwise would unmistakably expose Carrier to jeopardy from one District or the other under the Organization's current complaint. This, the Board finds, is an unreasonable expectation, and one the authors of Article 26 (and the Local Agreement establishing standardized trip miles for M&M engineers) clearly never intended. The total distance over which Claimant was required to operate off of his district, a distance of a mere 2/10 mile, is a substantial factor in the Board's conclusion. The Board finds the trespass in this case of small dimension and without any material advantage to Carrier or disadvantage to Claimant; and therefore not indicative of any material breach of Claimant's seniority rights. However, as Referee Daugherty noted in First Division Award 19929, the Board sets no standard herein which may be applied elsewhere on the property; to do so would, indeed, constitute construction of a new seniority rule.

6 Page No. 6 As set forth above, the Board finds that Carrier did not violate the real meaning of Article 26 in this case. The claim is denied. AWARD: The claim is denied. ~/) ~ Dated this!5 day ofu {c. O,2001. M. David Vaughn, Neutral er Gd,~~~lrk-L~ PatricialMadden, Carrier Member Paul Sorrow, Employee Member d~/