PUBLIC LAW BOARD NO. 5487

Case No. 6
Award No. 6

PARTIES TO DISPUTE:              UNITED TRANSPORTATION UNION

                                            -and-

                                 UNION PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM:

Claim of various Yardmen on various dates in July, August, September and November, 1989, when they were required to remove or apply rear-end devices on trains arriving or departing Salt Lake City Yard.

This Board, upon the whole record and all the evidence, finds as follows:

That the parties were given due notice of the hearing;

That the Carrier and Employees involved in this dispute are respectively Carrier and Employees within the meaning of the Railway Labor Act as approved June 21, 1934;

That this Board has jurisdiction over the dispute involved herein.

On this property cabooses were removed pursuant to the September 24, 1984 Arbitration Award No. 419 of Neutral John Gentry. That Award provided, in pertinent part, as follows:

"...where employees other than train crew members are assigned, the ground crew members should not be required to remove or affix rear-end markers or protection equipment. In those circumstances where such employees are not employed, it will be the responsibility of the ground crew members to affix or remove rear-end markers or protection equipment. In those instances where train crew members are required to perform such work, no additional compensation will be provided...."

In July, August, September, October and November, 1989, Yard Foremen and their crews at Salt Lake City Yard submitted time slips claiming 100 miles because they were required to affixand/or remove rear-end devices to road trains arriving at or departing from the yard when Carmen were available to perform this work. Those claims were denied by the Carrier's Timekeeper. On November 15, 1989, the Organization appealed the claims to the Assistant Director of Labor Relations.

In the opinion of this Board, the following issues must be decided:

1. Were the July, 1989 claims barred because they were appealed outside the time limits?

2. Did Arbitration Award No. 419 apply to yard employees who affix or remove rear-end devices on road trains?

3. Were Carmen "available" to perform this work?

4. Who are the proper Claimants and what compensation, if any, are they entitled to?

Rule 49 (c) provides, in pertinent part, that if a claim is disallowed appeal must be made in writing to the Supervisor of Wage Schedules within 90 days from receipt of notice of disallowance. The claims of employee R. Chatwin for July 22, 23 and 24, 1989, were appealed by the Organization on November 15, 1989, approximately 114 days after they were rejected by the Carrier's Timekeeper. Since this appeal was not made within the requisite 90 day time limit prescribed by Rule 49 (c) these claims are barred and cannot be considered by this Board.

The central question to be addressed in this case, in the view of this Board, is whether Arbitration Award No. 419 on this property intended to allow yard crews to place or remove rear-end markers on road trains as part of their duties without additional compensation. Based on this Board's reading of that Award, we find that the term "ground crew members" applied to both road train service employees and yard employees. Thus, in our judgment, the author of Arbitration Award No. 419 on this property intended to relieve yard employees of the task of applying or removing rear-end markers or other protective equipment on road trains where other employees are available to perform this work.

This Board recognizes that the opinion expressed herein is probably the minority view of tribunals that have addressed this question. Yet Neutral Fletcher reached the same conclusion in Award No. 1 of Public Law Board No. 5297. And in any event, it is the September 24, 1984 Arbitration Award No. 419 on this property that is controlling, not caboose awards rendered on other properties.

If Carmen were available to affix or remove rear-end devices on road trains at the Salt Lake City Yard, yard crews should not have been assigned this task. In deciding whether other employees were "available" to perform this service this Board finds the analysis of Neutral Vernon in Award No. 2 of Public Law Board No. 4567 instructive. Neutral Vernon found that it was the carrier's burden to establish that other employees were not reasonably available to perform this work since it was the carrier's obligation to make an effort to relieve train crews of having to handle rear-end devices.

In the case before this Board, the Carrier has not shown that on any of the claim dates Carmen were not readily available to handle rear-end devices on trains operating into and out of the Salt Lake City Yard. It is significant to note that Carmen are employed around the clock at this terminal. The Carrier has not shown that Carmen were not available to affix or remove rear-end devices to the trains on which the Claimants were required to perform this service. Accordingly, the Claimants should not have been assigned this task.

In the opinion of this Board, the appropriate remedy for the Carrier's violation of the September 24, 1984 Arbitration Award No. 419 is payment of two (2) hours' pay in addition to other earnings to those employees who actually affixed or removed the rear-end devices. Two (2) hours' pay was the remedy the Organization requested before Neutral Gentry for this service. There is no basis for allowing payment to other members of a yard crew merely because one member of the crew was required to handle rear-end devices. Only the yard employees who performed this service are entitled to the two (2) hours' pay.

Claim sustained to the extent indicated in the Findings.

Carrier is directed to make the within Award effective on or before thirty (30i days from the date hereof.

Robert M. O'Brien, Neutral Member

John L. Easley, Employee Member

A. Terry Olin, Carrier Member

Dated: January 20, 1995