YARDMASTER DEPARTMENT AWARDS
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AWARDS 113 - PROGRAMMING
Public Law Board No. 5189, Award No. 1 (Meyers) "This Board has reviewed the entire record in this case, including the arguments compiled during an executive session, and we find that the controlling language appears in Rules 803 and 803(A) of the Carrier’s Consolidated Code of Operating Rules. Those Rules state the following:
"The record reveals that the Carrier implemented the ten-hour shift schedule on June 12, 1989. In implementing this new schedule, the Carrier’s Assistant Superintendent issued instructions that specified that yardmasters were to leave work orders for those periods of time when no yardmaster was on duty. These instructions make clear that, just as they do when actually present and on duty, the yardmasters are responsible for programming the movement of trains and crews in the yard during the four hours each day that no yardmaster is on duty. "On the date the instant claim arose, and in accordance with the Assistant Superintendent’s instructions, the Claimant left written orders with the Carrier’s Control Center relating to the incoming ore train. There is no dispute that the Claimant’s written orders subsequently were changed by the trainmaster, who is a non-yardmaster employee. "In Fourth Division Award #4308, the Board stated:
"The Carrier has asserted that because the Organization is claiming that the Carrier violated the Scope Rule, the Organization bears the burden of proving that the type of work at issue has been exclusively performed by yardmasters on a system-wide basis. This standard is applicable in situations involving only claimed violations of the Scope Rule. The instant matter, however, is not so limited. "This Board has reviewed the Carrier’s argument that this case involves a claimed Scope Rule violation and that the Organization has not shown their rights to be exclusive and system-wide in the past. This Board finds, however, that this dispute does not involve a violation of the Scope Rule, but rather a violation of Carrier Operating Rules 803 and 803(A), which specifically assign the work at issue to the yardmasters. These two rules charge the yardmaster with the responsibility for directing and programming all train and crew movements within the yard; it gives the yardmaster supervisory responsibility over all employees in yard, train, and engine service in connection with such movements. The record does not contain any evidence of rules or operating procedures by which yardmasters are expressly authorized to delegate these responsibilities, or by which other employees are expressly authorized to assume such duties. In fact, the Carrier’s issuance of instructions that yardmasters are to leave orders governing train movements for those time periods when no yardmaster actually is on duty represents the Carrier’s acknowledgment that this work properly is done only by the yardmaster. "In further support of this finding is the fact that the Carrier’s June 1989 instructions relating to the implementation of the shift emphasizes that not only must the yardmaster leave orders to cover the entire period during which no yardmaster is on duty, but that the yardmaster is to make sure that the dock foreman understands that the orders are not to be changed; that the orders, in any event, are not to be altered unless absolutely necessary; and that the personnel on duty during such periods can reach Carrier personnel, presumably both on- and off-duty personnel. These provisions suggest that the Carrier anticipated that any necessary changes in the yardmaster’s orders would come only with the off-duty yardmaster’s approval after consultation between the on-duty personnel and the off-duty yardmaster. "With respect to the remedy, this Board finds that the Claimant in this case was the regularly assigned yardmaster on the dates that the program instructions were changed. The Claimant was off duty and available to be called to perform the yardmaster work that was performed improperly by the trainmasters. If the Claimant had been called to perform the yardmaster work, he would have been paid at the rate of time and one-half. This Board must find that the Organization’s request that the Claimant be paid at the time and one-half rate be sustained." Public Law Board No. 5189, Award No. 2 (Meyers) "The Carrier has denied the Organization’s appeals, alleging that the Organization has not proven that the required instructions, which are to be left for the switch crews, are reserved exclusively for yardmaster employees. The parties being unable to resolve the issue, this matter came before this Board. "This Board has reviewed the extensive record in this case, including the arguments compiled during an executive session, and we find that the Carrier violated the Agreement by permitting non-yardmaster employees, trainmasters, and others to change the program instructions that had been left by the yardmaster. "There is no question that the yardmasters are required to program and supervise the movement of trains and crews in the yard. In addition to the Scope Rule, which states that supervision over employees directly engaged in the movement of cars is required of the yardmaster, the Carrier’s Consolidated Code of Operating Rules 803 and 803 (A) are relevant to this dispute. Those Rules state:
"Also applicable to this dispute is the fact that, in implementing this new schedule, the Carrier’s Assistant Superintendent issued instructions that specified that yardmasters were to leave work orders for those periods of time when no yardmaster was on duty. These instructions make clear that, just as they do when actually present and on duty, the yardmasters are responsible for programming the movement of trains and crews in the yard during the hours each day that no yardmaster is on duty. "In this case, there is no question that the trainmasters changed the instructions that had been left by the yardmasters. Since the June 12, 1989, Agreement, that work has been yardmaster’s work. The record definitely establishes that programming the movements of trains and crews in the yard is the responsibility of yardmasters, and developing and leaving work orders for the period when no yardmaster is on duty is a critical part of this very responsibility. If the Carrier wants to change this aspect of the June 12, 1989, Agreement, it must do so through negotiations, not through the unilateral reassignment of the work. "Rules 803 and 803(A) make it very clear that the yardmaster is responsible for and exercises supervision over the yard crews, clerks, and other employees working in the yard. It is the yardmaster who is charged with the prompt and regular movement of cars. The Fourth Division, in numerous awards, has upheld those yardmaster rights. That work cannot be reassigned to non-yardmaster employees. "In Fourth Division Award #4308, the Board held:
"This Board has reviewed the Carrier’s argument that this case involves a claimed Scope Rule violation and that the Organization has not shown their rights to be exclusive and system-wide in the past. This Board finds, however, that this dispute does not involve a violation of the Scope Rule, but rather a violation of Carrier Operating Rules 803 and 803(A), which specifically assign the work at issue to the yardmasters. These two rules charge the yardmaster with the responsibility for directing and programming all train and crew movements within the yard; it gives the yardmaster supervisory responsibility over all employees in yard, train, and engine service in connection with such movements. The record does not contain any evidence of rules or operating procedures by which yardmasters are expressly authorized to delegate these responsibilities, or by which other employees are expressly authorized to assume such duties. In fact, the Carrier’s issuance of instructions that yardmasters are to leave orders governing train movements for those time periods when no yardmaster actually is on duty represents the Carrier’s acknowledgment that this work properly is done only by the yardmaster. "In further support of this finding is the fact that the Carrier’s June 1989 instructions relating to the implementation of the shift emphasizes that not only must the yardmaster leave orders to cover the entire period during which no yardmaster is on duty, but that the yardmaster is to make sure that the dock foreman understands that the orders are not to be changed; that the orders, in any event, are not to be altered unless absolutely necessary; and that the personnel on duty during such periods can reach Carrier personnel, presumably both on- and off-duty personnel. These provisions suggest that the Carrier anticipated that any necessary changes in the yardmaster’s orders would come only with the off-duty yardmaster’s approval after consultation between the on-duty personnel and the off-duty yardmaster. "The Carrier also has asserted that the record does not show that all of the changes at issue were initiated by or involved a trainmaster. This Board finds, however, that the record conclusively establishes that on the dates in question, changes were made in the programmed work orders left by the yardmaster. Moreover, these changes definitely were initiated by non-yardmaster employees; this is necessarily so in light of the fact that no yardmaster was on duty when the change were made. These facts establish that the claimed violations did occur. "With respect to the remedy in this case, the Claimant was the regularly assigned yardmaster on the dates that the program instructions were changed in violation of the Agreement. The Claimant was off duty, rested, and available to be called into work as a yardmaster. Had he been called into work, he would have been paid time and one-half. "Given the record before us, this Board has no choice but to sustain the claim." Fourth Division Award No. 801 (Boyd) "The amount of supervision to be provided is a prerogative of management. But it is not authorized under the current Agreement to remove work contracted for by Yardmasters by altering the type of supervision and requiring others to perform it." Fourth Division Award No. 1494 (Weston) "It is accordingly our view that the Carrier violated the Agreement by unilaterally assigning work covered by the Agreement to employes not subject to its terms. . . . Employes are entitled to the entire work content of their position that is embraced within the scope of the Agreement and it would be unreasonable to sanction the unilateral whittling away of any part of that total content." Fourth Division Award No. 1611 (Gray) "It is a well established rule of law that one may not accomplish by indirection what he is forbidden to do in a direct manner. ... * * * "In Third Division Award 731 it was held, `In an equally long line of cases the Board has held that the carrier does not have the right, under the guise of abolishing a position to transfer the duties of the position to someone not under the agreement.' . . " Fourth Division Award No. 1835 (Weston) "The uncontroverted facts establish that a yardmaster position was eliminated and some of its duties thereafter performed by non-yardmasters. Confronted with very specific information furnished by Petitioner, Carrier produced no data whatsoever to show that the non-yardmasters in question were merely implementing orders that actually originated with yardmasters or were performing work that normally had been part of their regular assignment." Fourth Division Award No. 1836 (Weston) "Though confronted with this specific information, Carrier raised no objection to its quality and presented no facts on the property to explain away or controvert the charges. "Carrier has committed itself to a collective bargaining agreement covering its yardmasters and their work. So long as that Agreement remains in force, Carrier cannot unilaterally eliminate Yardmaster positions and have their duties performed by footboard yardmasters or other persons outside the scope of the Agreement. See Award 1343." Fourth Division Award No. 2627 (Weston) "This is not a situation where a clerk is routinely relaying instructions that had just been given to him by a yardmaster and we are convinced that contrary to Carrier's view, these instructions to a yard crew as to where its train should be placed is clearly yardmaster's and not merely clerical, work. That the clerk may have issued the orders on his own is not relevant for Carrier takes the risk that such a situation may develop when it does not maintain a yardmaster position in the yard." Fourth Division Award No. 3388 (Dolnick) "Nowhere in the record does the Carrier categorically deny the work performed by the Director of Tower X is exactly as contained in each of the claims. Nor is there a denial that yardmasters at this yard instructed train crews how and where to yard their trains. The only real question before this board is whether or not on this property this work belongs exclusively to yardmasters. "Carrier relies heavily on Award 3232 on this property. We do not believe that this award is a precedent sufficiently relevant to invoke the principle of stare decisis. There is no serious disagreement in the instant claims before this board that the Carrier had the right to rearrange the yardmaster positions at Boston. Carrier alone has the right to determine when and how many yardmasters are required, provided, however, that employes of no other craft perform work which belongs exclusively to yardmasters. Award 3232 states that: `The record is totally barren of evidence that yard clerks or other employees performed any work belonging exclusively to yardmasters'. "In the claims before this board now there is evidence that yardmasters had for many years prior to February 14, 1975 exclusively directed train crews when, where and how to yard their trains at the yard. Carrier has offered no probative evidence that employes of other crafts have also directed train crews on yarding of trains. A statement that no yardmaster's duties were performed by other classes of employes is a mere assertion and not evidence. Carrier concedes the statements in each of the claims and it has offered no evidence to rebut the fact that by history, custom and practice on this property instructions to yard trains came exclusively from yardmasters. As such it has become work that belongs exclusively to them." Fourth Division Award No. 3429 (Sickles) "In the initial claim, the Employees concluded that the sole purpose of the June 21, 1975 document (cited above) was to inform certain people of information so that `...other crafts may instruct road crews where to make set outs, and where to make pick ups.' In its denial, Carrier conceded that road crews make set-outs and pick-ups at Laramie, but stated that no instructions are issued in this regard. It concludes that `other crafts' may be passing information, but not exercising supervision. "In response, the Employees states that the Operator `...marks and reads from the train consist and instructs road crews over the radio, how many cars to reduce, and what track to set these cars in, and what track, and how many cars to pick up...' Carrier again denied a violation, but failed to comment upon the above-cited allegation that Operators are involved in making operational decisions. "If the Board concurred with the conclusion expressed by Carrier at Page 2 of its Brief that, `The only function the operator performed in the instant case was to relay information given him by the second trick yardmaster to the train dispatcher.', then, of course, various Awards cited by Carrier would suggest a different result herein (see, for example, Awards 3280 and 3335). But, the allegation made on the property - which was not factually rebutted dealt with other individuals performing discretionary duties and making determinations reserved by this Agreement to Yardmaster. In that regard, we feel that the determination in Award 3009 - between these same parties, is particularly significant (rather than Award 3010, authorized by the same Referee and adopted on the same day as Award 3009)." Fourth Division Award No. 3009 (O'Brien) "The issue before this Board for determination is certainly not one of first impression. A review of the many awards cited to us relative to this issue reveals that in claims such as this the Board must determine whether duties accruing to the yardmasters craft are being performed by non-yardmasters to the detriment of the latter. It is well established that the principal duties belonging to the yardmasters craft consists of supervision of employees, within yard limits, when such employees are engaged in the making up, breaking up and handling of trains, and performing switching duties. See Award 2189. In each instance the claim rises or falls on the specific factual evidence as it is applied to the aforementioned principles. "Referee Weston, in Award 2606 involving these same parties, declared that the fact Carrier abolished yardmaster positions and it simultaneously created a terminal trainmaster position at that location and put yard conductors on footboard yardmaster pay may provide an inference in Petitioner's favor, but to prevail Petitioner must also establish by persuasive evidence that Carrier actually used non-yardmasters to discharge responsibilities that belong to yardmasters. The claim there was denied due to the absence of such proof. "However, in the claim before us we conclude that the Organization has come forward with such evidence to convince us that duties existed at Idaho Falls which belonged to the yardmasters craft and said work was being performed by employees outside the Yardmasters' Agreement. Such evidence consisted of: the Terminal Superintendent directing what cars are to be loaded, where to place stock cars, where to store cars, instructing yard crews where to set up and spot cars for unloading, when to move cars out, when to move stock cars while the clerks instructed crews where to pull out and spot up loads, and on which tracks cars are to be placed. It is our opinion that such work involved these non-yardmasters in supervising yard crews in the making up and breaking up of trains and in their handling of trains in the yard. Since such work involves a substantial part of the duties of the yardmasters we are compelled to the conclusion that non-yardmasters are performing such work in violation of the Yardmasters Agreement." Fourth Division Award No. 3639 (Sickles) "The appeal to the Director of Labor Relations specified that the work in question has always been done by, and under the supervison (sic) of, the Yardmaster on duty, and not by the Clerk-Operator or the Trainmaster. The final denial (which is the only responsive statement issued by Carrier on the property) stressed the fact that the act of an on-duty Clerk-operator securing and furnishing track information to a train crew is not a violation of the agreement, because of the long and well-established practice under which Yardmasters `...does not have the exclusive right to furnish information and instructions to crews.' Further, it was stated to be a systemwide practice for Agents, Operators, Clerks, Dispatchers, Trainmasters and other officers to issue operating instructions to crews. "In response, the Organization states that other designated employees do not issue operating instructions in yard limits where Yardmasters are employed, and reiterated its contention that the work performed by the Clerk-operator on duty on the date in question violated the Yardmasters' Agreement and, of course, the Agreement between the parties specifies that if the work of a blanked position is to be performed by other than the incumbent, it is to be performed in accordance with the existing schedule rules. "In its Submission to this Board, the Carrier asserts that the work at issue is not reserved for performance by a Yardmaster - by agreement or practice - and it refers to the fact that certain functions may not have been performed `within yard limits.' Moreover, the Carrier's Submission suggests that the work performed by the Clerk-operator and Trainmaster was limited to merely a relaying of information and/or work which is not exclusively performed by Yardmasters. The Brief submitted to this Board categorizes the orders in question as `minor' and it urged that there was no exclusive right to furnish the information. Further, it refers to an asserted agreement concerning Agent-Yardmasters or Footboard Yardmasters performing certain duty during the hours that no Yardmaster is employed or on duty. "While the Board has considered all of the documents of record at length, nonetheless, we are required, in the final analysis, to base our determination upon matters which were properly raised on the property and developed prior to submission here. In that regard, we note that the factual basis for the Carrier's denial has been significantly expanded in the various documents submitted to this Board. "The denial stated that it was a long and well-established practice that Yardmasters do not have the exclusive right `to furnish information' and instructions to crews and that it is a systemwide practice for others to issue said instructions. But, as we view the allegations of the claim, the Organization was not basing its claim upon the mere administerial act of issuing instructions. Rather, it was contesting asserted acts by others in making substantive determinations - not merely performing administerial relaying of information. This contention is obvious by the Claimant's reference to `authority.'" Fourth Division Award No. 3204 (Eischen) "We have carefully considered the relevant record evidence confining our review, as we must, to probative evidence timely placed in the record. We are constrained to conclude that on balance Petitioner has carried its burden of proof by demonstrating that in the facts and circumstances of this case employes other than Yardmasters have supervised employes engaged in the making up, breaking up and handling of trains and switching in Carrier's Fitchburg Yard. Specifically, we find on the record that the Yard Clerk not only makes up the switching lists (concededly clerk's duty) but also instructs the yard foreman to show him which cars to switch out or make up into trains. (Yardmasters' duty). See Award 2627. Also the record supports the allegation that the tower operator and the clerk are, between them, performing other yardmaster functions regarding deciding, assigning and ordering which clear tracks are to be used and where a pick up or set off is to be made. In the face of this record we must sustain the claim. "Carrier asserted on the property and before our Board that the claim was vague and indefinite in regard to the ad damnum portion. We have examined the arguments and the authorities submitted and shall not award the eight hours pro rata pay at Yardmasters rate sought by Claimants. Nor is there any showing that the violation of the Scope Rule occurred prior to June 14, 1973. Accordingly, Claimants shall be compensated on the basis of the difference between what they would have earned as Yardmasters at Fitchburg Massachusetts Yard on the abolished second tour and relief Yardmasters positions, less their actual earnings as employes of this Carrier, from June 14, 1973 until the violative conduct ceases. See Award 2032, citing Awards 1897 and 1898." Fourth Division Award No. 4308 (Zusman) "In the first set of eighteen (18) claims the Claimant left specific pre-programmed instructions as required by the Carrier and for which Yardmasters had previously `remained on duty at overtime pay until such time as a proper lineup could be provided.' A review of the evidence before us, specifically the letters of July 1, 1982 and March 4, 1983 and the actual changing of instructions support the claim. There is no denial on property that programmed instructions were changed or that agreements between the parties settled prior claims in 1976 when lineups were changed. A careful review of the record as developed on property supports the conclusion that Yardmasters at Acca have been historically assigned the duty of programming on the 4:00 p.m. to midnight shift the yarding of trains from midnight to 8:00 a.m. and that such duties allowed some control over road crews and trains within Acca Yard. We are forced to conclude that in the changing of instructions non-yardmasters have supervised employes in duties assigned by the Carrier to Yardmasters. Specifically, the record is complete with documentation that train operators are making their own decisions and altering the Yardmaster's pre-programmed instructions on the handling of trains. We have studied at length the Carrier's denials, arguments and Awards in support of its position, but find that on the whole of this case at bar we must sustain the claim in those eighteen (18) cases. This is consistent with past Awards of this Fourth Division (Awards 3204, 3009)." Public Law Board No. 4093,
Awd. 6, Case 6 (Zusman) (UTU/Chesapeake & Ohio) |
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Last modified: April 29, 2005