NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NO

John C. Fletcher, Chairman & Neutral Member
David R. Haack, Employee Member
John M. Raaz, Carrier Member

Various conductors and brakemen, Central Division, for a days pay at prevailing rate on various dates listed below. Claim based under the provisions of Road Rule 43 of the applicable schedule.

Public Law Board No. 5297, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute(s) herein; and, that the parties to the dispute(s) were given due notice of the hearing thereon and did participate therein.

This is one of 62 claims before this Board dealing with the handling of End of Train Devices (EOT's) by yard and road ground service employees. Because these disputes have common issues, all issues will be discussed in this Award (even though they may not be relevant to this particular claim), thus enabling the Board to apply this Award to the remaining disputes without repeating the detailed discussion herein.

EOT's are required on trains which operate without a caboose. They are attached to the trailing coupler of the last car of the train, and send information about trainline air pressure and miles traveled to a receiving unit in the locomotive by radio telemetry. During hours of darkness, the EOT also flashes a red marker light to the rear of the train, providing rear end protection. The EOT has a battery pack which must be recharged between trips.

Installation of the EOT is accomplished by inserting the mounting bracket shaft into the knuckle flag pin hole, and then securing the device with a rubber strap. The EOT is then locked on with a steel security cable and a switch lock. Finally, the EOT's air hose is connected to the car's trainline air hose and the angle cock is opened. The device is then tested by pressing a "test" button.

The need for EOT's came about as a result of Article X of the October 15, 1982 National Agreement (1982 Agreement) between the National Carriers Conference Committee (NCCC) and the United Transportation Union (UTU), which authorized carriers to begin the removal of cabooses from certain road and yard movements. The 1982 Agreement further provided for a dispute resolution procedure in the event the parties could not agree to the manner of removal of cabooses. Disputes under Article X were directed to Arbitration Board No. 419, which had a panel of Neutral Members. On CNWT, the dispute was heard by Arbitrator Harold M. Weston, who issued an Award on May 19, 1984. Relevant to this dispute, Arbitrator Weston wrote:

It is proposed that ground crew members "will be required to affix or remove rear-end markers or protectors. This work will be exclusive of roadmen's work." This Neutral finds no justification for this proposal.

The placement or movement of rear-end markers is not work that belongs exclusively to ground crews. Nothing in Special Board of Adjustment Award 3639 provides to the contrary.¹

The ground crews should be relieved from the work of handing (sic) rear-end markers or protectors whenever other employees are available to perform that work. There may be occasions, however, when, as a practical matter, ground crews may attend to the work since no other employees are available; as other arbitrators have suggested, devices should be provided by the CNW to crews to facilitate the handling of that work when necessary.

^{1
This reference is apparently to Award 2693, which dealt with conductors carrying
battery packs for caboose marker lights to and from the train. Finding that the
battery packs were an integral part of the marker lights, which historically
have been the responsibility of the conductor, the Board held the requirement to
carry the battery packs to or from the train was not a violation of the
agreement.}

On November 7, 1990, PLB No. 4774, between these parties, issued Award 1 in a dispute where the conductor on a train operated without a caboose was required to either bring the EOT² from the diesel ramp at Proviso Yard to his train and install it, or remove the EOT from his train and return it to the Proviso diesel ramp. Despite Carrier's assertion that such work may be performed by conductors, as well as its argument that car department employees, as a practical matter, were not available, PLB 4774 held:

... It is instructive to note that Proviso is a sizable yard where numerous car department employees are regularly assigned. Accordingly, it is difficult for this Board to conclude that car department employees were not available to affix and remove the starmarker from the Claimant's train. In the light of the explicit findings of Arbitration Board 419, the Claimant therefore should have been relieved from handling the starmarker when he went on and off duty at Proviso when other employees were available to perform this work.

This Board recognizes that Award No. 2693 of Special Board of Adjustment No. 235 is contrary to our decision herein. However, that Award predated the Award of Arbitration Board 419 on this property and, to the extent that they are inconsistent, the Award of Arbitration Board 419 must prevail since it addressed the precise issue involved in this dispute, namely what craft or class of employees is responsible for handling rear end markers on trains operating without a caboose pursuant to Article X of the October 15, 1982 UTU National Agreement. The instant claim shall therefore be sustained. Eight (8) hours pay is the appropriate remedy for each day that the Claimant was required to handle the starmarker on his train at Proviso when other employees were available to perform this work, in the opinion of the Board.³

²In the dispute before PLB 4774, Carrier drew a distinction between a starmarker, which was involved in that case, and the EOT, which Carrier stated was a more sophisticated device. This Board does not find such a distinction material to this dispute, and uses the term "EOT' to refer to all rear end devices used in cabooseless operations.
³The Carrier Member of PLB 4774 dissented to this Award, but only as to the eight hour penalty.

With this background, the parties have brought to this Board a number of issues related to both the Award of Arbitration Board No. 419 and Award No. 1 of PLB 4774. These issues may be summarized as follows:

2. Under what circumstances will those 'other employees' be considered available?

3. What is the appropriate penalty when train service employees are required to handle an EOT when "other employees" are available to do so?

5. It is a violation of the Agreement for train service employees to handle EOT' s which are not used on their train? If so, what is the appropriate penalty?

ISSUE NO. 1. To what "other employees" must Carrier assign the work of handling EOT's?

UTU asserts that this issue was resolved by Arbitration Board 419, with Arbitrator Robert E Peterson, in a dispute involving the Seaboard System Railroad. In that dispute the Board wrote:

5. In Section 12(a). who would be considered the "appropriate personnel" available?

"Appropriate personnel" who would be considered available to place, move, attach or take off protective devices from he rear or last car of trains operated without a caboose would include represented employees of various crafts or classes, principally, shop craft employees, who are on duty and reasonably available and may be contractually required to perform such work as a part of their normal or regular duties.

UTU argues that "other employees" is not limited to carmen, and it is mandatory for Carrier to establish a contractual constraint that would bar other classes of employees from handling EOT's. It suggest that this would include employees such as yardmasters, clerks, mechanics-in-charge, hostlers and engineers.

CNWT, on the other hand, first argues Award 2693 of SBA 235 must prevail, and that trainmen and conductors may be required to handle EOT's for their trains in the same manner they were required to handle other rear end marking devices. Notwithstanding this position, Carrier would limit "other employees" to carmen. Carrier relies upon Awards 36 and 37 of PLB 4555, with Referee Don B. Hayes, between CSX Transportation and UTU. In that Award, the Board parenthetically inserted the word "carmen" each time it referred to other employees who may be required to handle EOT's.

This Board rejects Carrier's argument that SBA 235's Award 2693 has application to cabooseless operations. Our review of that Award indicates the conductor's responsibility for the handling of rear end marking devices, and the battery packs which became an integral part thereof, was derived from his responsibility for his caboose, which was assigned to him prior to the Pooling Caboose Agreement of 1959. Without a caboose, that connection no longer exists. Furthermore, Arbitration Board 419 created a special rule applicable to cabooseless operation subsequent to Award 2693. That rule effectively relieves train service employees of this responsibility when "other employees" are available. PLB 4774 correctly found that Award 2693, to the extent that it is inconsistent with the Award of Arbitration Board 419, has been superseded.

We also reject the Organization's argument that all other crafts are considered available unless Carrier demonstrates a contractual bar. In an age of declining employment in the railroad industry, it is likely that few, if any, other organizations would reject this work. We do not think that it was Arbitrator Weston's intent to have this language interpreted so broadly. Additionally, this Board is not in a position, nor does it have jurisdiction, to determine which crafts may perform this work. We are, however, persuaded that "other employees" is intended to refer to those crafts which have historically performed the work of this nature. In this regard, we would limit such a definition to carmen and mechanics-in-charge. There is no evidence before this Board which would cause us to expand this definition.

ISSUE NO. 2. Under what circumstances will those "other employees" be considered available?

Citing Award 2 of PLB No. 4567, with Referee Gil Vernon, between UTU and Norfolk and Western Railway Company, the Organization maintains that Carrier has the burden of showing why "other employees" were not available. In Award 2, PLB 4567 held:

In the instant case the Carrier has not convinced us that other employees weren't reasonably available. This is an oar the Carrier must row since it is their obligation to make an effort to relieve train crews of having to handle EO.T.D.'s and individual cases where this isn't practicable they are in the best position to explain why other employees were not available. Simply speaking, when and E.O.T.D. needs to be removed a trainmaster or other supervisor should check to see if there are any other employees available to remove the E.O.T.D. If they are not available the supervisor should be prepared to explain why.

CNWT, again citing Awards 36 and 37 of PLB 4555, argues that an employee, to be available, must be on duty at the location, available at the time the application or removal of the EOT device is required and must be available to do so in such a manner that it will not create otherwise avoidable operating delays.

This Board takes some guidance from the following language in PLB 4555's Awards 36 and 37 on this issue:

Although no court or arbitrator has developed a litmus test which will mechanically affirm when an employee is "available," in our judgment mere geographical presence (accessibility) is insufficient to raise the rebuttable presumption that a qualified individual was, in fact, "available." ... [A] careful analysis of the cited progenies of Award 419, persuades us that the proper test, and one implicitly envisioned by such arbitration boards, involves substantially more than mere accessibility. Availability (unavailability), in the context used by this board, is intended to mean reasonable or practical availability; however, it requires that each situation must necessarily be judged on the circumstances obtaining at the time the assignment of handling the device is made.

Private sector arbitrators, as well as many railroad boards, have shown a particular reluctance to declare an employee "available for work" when the practical and probable effect of utilizing such "available employee" is to inflict otherwise avoidable operating delays, or material costs, on the employer (carrier); this is particularly true when such delays (costs) can be avoided without precedent, without destroying the integrity of craft lines, without inflicting undue burdens on one craft and without eroding the objective standards to be applied in determining when such work may thereafter be improperly transferred across craft lines.

Award No. 2 of PLB 4567, relied upon by the Organization, also recognizes that employment at a point does not necessarily constitute availability. The Board wrote:

... A number of factors bear upon [whether it is practicable and reasonable to send carmen] including the number of carmen on duty, the work demands at the time it is necessary to remove the E.O.T.D and availability of vehicles. Accordingly, a determination of "reasonable availability" of other personnel must be made on a case by case basis.

Although Arbitration Board 419 relieved ground crews of this work, it also recognized that there must be a practical application of this rule. This point can be found in the awards cited by both parties. CNWT's primary concern is the expeditious handling of its trains, at both the point of departure and the point of arrival. It should not be required to delay the departure of trains or their switching upon arrival simply because the appropriate employee is not available. On the other hand , the scheduling of trains is under Carrier's control. Consequently, it must make every reasonable effort to utilize other than train crew members to perform this work.

While it is true that questions of availability will ultimately be made on a case by case basis, some rules of reason should control in each situation:

First.	Availability must recognize certain time constraints. An employee is available only during the hours he is actually working. The rule does not require the payment of overtime or the extension of hours by an employee already working overtime. Thus, a carman who is about to end his shift and would go on overtime if he were used to handle an EOT, should be considered unavailable.⁴Similarly, meal periods are also times of unavailability if the meal period is scheduled and unpaid. Questions of time will also consider when the departing train was made up and when the arriving train was first handled by yard forces. In other words, the entire time the train was standing on the departure or arrival track must be considered in the determination if another employee was available.
^{4 An employee working on an overtime shift, however, would not be considered unavailable for that reason alone. Rather the test had ought to turn on whether the work connected with EOT placement or removal would place a carman on overtime or extend overtime already being worked.}
Second.	Availability must recognize certain geographical constraints. The Board recognizes that some of CNWT's facilities are large terminals where it would be impractical to consider every carman within the terminal as being available to service a departing or arriving train. Accordingly, and as a general rule subject to variances, an employee is available if working in the departure or arrival yard, whichever is appropriate. Generally, employees working in a shop will not be considered available.
Third.	Availability must recognize the other duties of the employee. An employee whose duties have required him to leave the yard is not generally considered available during the time away from the yard. Duties, once begun, which may not be interrupted without risk of safety or loss of productivity⁵may render an employee unavailable during the performance of those duties. An employee who is already engaged in expediting the movement of another train is not generally considered available.

The Organization will be deemed to have established a prima facie case when it has shown that a carman or mechanic-in-charge is employed at the departure or receiving yard at the relevant time. It is then the burden of the Carrier to show that the employee was not available for any of the reasons stated above, or for other valid reasons somehow not envisioned by the Board and articulated in this Award. Carrier has the resources for obtaining this information and claimants should not be expected to locate the other employees.

ISSUE NO. 3. What is the appropriate penalty when train service employees are required to handle an EOT when "other employees" are available to do so?

According to the Organization, the only appropriate penalty for a violation is a day's pay. In pan, the Organization relies upon Award 1, PLB 4774, as quoted above. The Organization also asserts that CNWT's violations were willful, in that it issued bulletins directing that this work be performed by groundmen, sometimes to the exclusion of all others. UTU argues that Carrier will be deterred from continued violations only if they Board grants a full day's pay as the remedy.

CNWT states that any penalty should be limited to two hours pay, asserting this is in accordance with Section 7 of the 1982 Agreement, under which carriers derived authority to remove cabooses from trains. That provision reads as follows:

If a train or yard ground crew has been furnished a caboose in accordance with existing agreement or practice on a train or assignment prior to the date of this Agreement other than in accordance with the provisions of this Article or other local agreement or practice, the members of the train or yard ground crew will be allowed two hours' pay at the minimum basis rate of the assignment for which called in addition to all other earnings."

Carrier submits that it is reasonable to apply the penalty for improperly being required to handle an EOT in the same manner as if the train were improperly operated without a caboose. Furthermore, Carrier claims PLB 4774 awarded a day's pay in Award 1 because of facts peculiar to that case. According to CNWT, not only was a carman available in that case, but it was a carman who drove the conductor to the rear of the train to install the EOT. Carrier cites awards involving similar disputes on other properties where two hours' pay was granted.

CNWT's argument is well-reasoned. The Award of Arbitration Board 419 is an extension of Article X of the 1982 Agreement. A portion of that Award relieves ground men of the work in question. When a train is operated without a caboose, but a groundman handles the EOT when other employees are available, there is a violation of the Award, and, therefore, a violation of Article X of the 1982 Agreement. Section 7 is the appropriate remedy for such violations.

Where the panics have agreed upon a penalty to be awarded in the event of a violation of the Agreement, it seems to be beyond the jurisdiction of a Public Law Board to modify the panics' understanding, even in the case of egregious violations. The penalty established in the 1982 Agreement is the liquidated damages the parties considered appropriate. Anything different would be an inappropriate modification of their expressed intent and contrary to basic tenets of arbitration authority. Accordingly, any violation is to be remedied by the payment of two hours' pay at the minimum basic rate of the assignment for which called in addition to all other earnings.

ISSUE NO. 4. Are yard service employees treated the same as road service employees?

CNWT asserts that there are no restrictions upon yard service employees handling EOT's, citing awards which it says support this position. The Organization refers to a statement made by the NCCC before Presidential Emergency Board No. 219 on this issue. NCCC wrote:

Certain arbitration awards dealing with the elimination of cabooses, restrict road crews from handling EOT devices in many instances. Under these arbitration awards, a road or yard service employee typically may not handle an EOT if a carman or other employee is deemed to be "available." When the carriers do use a road or yard crews to handle EOTs, penalty claims are submitted on behalf of the crews, in some cases, for carmen, [footnote omitted]

Carrier's arguments are not persuasive. First, the above statement may be attributed to Carrier. Even though made by NCCC, it was made on Carrier's behalf. It is, therefore, an admission that is contrary to the position taken herein. Second, the awards cited by Carrier indicate they flow from Arbitration Board No. 419 awards, which deal only with the removal of cabooses in road service. Arbitrator Weston's Award on this property, however, is directed to the removal of cabooses in both road and yard service, and it does not appear that Arbitrator Weston intended any distinction when he directed that ground crews be relieved of the work. It would not make sense to relieve yardmen of the work when EOT's were used in yard service, but require them to handle EOT's for roadmen.

ISSUE NO. 5. Is it a violation of the Agreement for train service employees to handle EOT's which are not used on their train? If so. what is the appropriate penalty?

With respect to this issue, UTU assets that EOT's are not to be considered supplies which may be placed on a locomotive or caboose by trainmen. Referring to the Joint Interpretation Committee under the 1982 Agreement, the Organization insists that train service employees are not required to handle "heavy equipment and supplies generally placed on locomotives and cabooses by employees of other crafts." According to the Organization, an eighty pound EOT, which is generally handled by other employees, does not fit the definition of supplies which trainmen may be required to handle.

The Board foresees three types of cases under this issue. In the first, the trainman takes an EOT from the yard office to the train, anticipating being required to install it in the absence of a caboose. The train, however, has a caboose and the EOT is simply stored in the caboose or locomotive. In the second case, a spare EOT is placed in the locomotive in case the one installed (by another employee) fails en route. In the third case, the crew is directed to place one or more EOT's in the locomotive or caboose to be transported to another location.

In the first case, the EOT is not a supply. It was intended to be used, and was, in fact, handled by the trainman, even thought it was not installed. Had it been installed and another employee was available, a penalty would be warranted. The fact that it was not installed does not change the nature of the violation. In the second case, the spare EOT is clearly a supply in the same manner as extra air hoses or batteries. It is not too heavy to fit the exclusion, nor is it generally handled by other employees when handled in this manner. Such handling is not in violation of the Agreement. In the third case, the EOT is not a supply, nor was it handled in connection with the train in question. While other rules and agreements might be applicable, such handling would not be in violation of the Arbitration Board 419 Award.

The above discussion on the five noted issues will be applied to the 62 claims before this Board on a case by case review.

In this case, Claimants were deadheaded from Des Moines to either Mashalltown or Mason City. They were directed to take EOT's with them on this deadhead move. When they arrived at the point at which they were to take a train, the EOT's were not necessary. Claimant's may have been then required to carry them to the yard office.

The claim is an example of the third case under Issue 5 above. Accordingly, it has not been shown to be a violation of the Agreement.