Award No. 4603
Docket No. 4470
2-S OU-CM-'64
NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee J.
Harvey Daly when award was rendered.
PARTIES TO DISPUTE:
SYSTEM FEDERATION NO. 21, RAILWAY EMPLOYES
DEPARTMENT, A. F. of L. - C. I. 0. (Carmen)
SOUTHERN RAILWAY SYSTEM
DISPUTE: CLAIM OF EMPLOYES:
1. That the Carrier violated the controlling Agreement when on
February 25, 1962 three Carmen from the K&I Terminal, Louisville,
Kentucky, were sent to Whitner, Kentucky, on Southern Railway System property to rerail cars.
2. That the Carrier be ordered to additionally compensate Carmen J. D. Hines, W. F. Cooper and R. H. Williams, Danville, Kentucky, for eight (8) hours' pay at rate of time and one-half for the
aforesaid violation.
EMPLOYES' STATEMENT OF FACTS: On Sunday, February 25, 1962,
at approximately 7:40 A. M., Southern Train No. 52, while setting off four
loads and eight empties on Track No. 2 at Whitner, Ky., derailed the lead
wheels of east truck, third car, Southern 36540 load, blocking entrance to
Louisville Produce Market.
On the same date, February 25, 1962, at the request of Southern Railway
Co. hereinafter referred to as carrier, three carmen employed by The Kentucky
and Indiana Terminal Railroad Company at Louisville, Ky., were sent to Whitner, Ky., to rerail Sou. car 36540 at approximately 10:00 A. M. and consumed
seven and one-half hours from the time of departure to the time of return to
home station. According to Carrier's Master Mechanic, F. E. Cranfield, the
three K.&I. Terminal Carmen arrived at the scene of the derailment at 11:30
A. M. rerailed the car and departed from the scene of the derailment at
4:00 P. M.
Carmen J. D. Hines, W. F. Cooper and R. H. Williams, hereinafter referred to as the claimants, are regularly employed by the carrier as carmen
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be made for an award of any other type would be contrary to the specific terms
of the controlling agreement cited and relied upon by the Brotherhood.
FINDINGS: The Second Division of the Adjustment Board, upon the
whole record and all the evidence finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On Sunday, February 25, 1962, at about 7:40 A. M., the lead wheels on
Car No. 36540 - which was part of the make up of Train No. 52 - became
derailed on Track No. 2 at the Produce Terminal Market at Whitner, Ken-
` tucky, which is on the outskirts of Louisville. The derailment reportedly blocked
Tracks Nos. 1 and 2 to the Market.
Carrier Carmen are employed at Huntington, Indiana, and at Danville,
Kentucky, but the Carrier does not employ Carmen at Louisville or at Whitner.
The Kentucky and Indiana Terminal Railroad, however, does have Carmen
based at its Youngstown Yard at Louisville, and it was three K&IT Carmen
who rerailed Car 36540. Youngstown Yard is about 10 miles from Whitner.
The Claimants are based at Danville, which is some 80 miles from Whitner.
The Carrier contends that an emergency existed; that it used the most
expedient means available to rerail the car; and that the Carrier's "use of
K&I Terminal Carmen was fully justified in this situation."
The Organization, on the other hand, contends that the work involved
belongs to Carmen; that no emergency existed; that the nearness or distance
Carmen have to travel is not a consideration within the pertinent provisions
of the controlling Labor Agreement; and that the Carrier's action violated
the controlling Agreement.
The fact that the work in question belongs to Carmen is established not
only by the pertinent provisions of the controlling Labor Agreement, but also
' by the Carrier's action in having the work done by K&I Terminal Carmen.
We cannot support the Carrier's position that an "emergency existed,"
because the record belies such a conclusion. The record reveals that the derailment occurred at about 7:40 A. M., but the Carrier did not call the three K&I
~', Terminal Carmen until 3 hours later. Those Carmen arrived at the derailment
scene at 11:30 A. M., which was exactly 45 minutes after they were called,
according to the statement of the Carrier's Superintendent of Motive Power.
Certainly the Carrier's dilatory action cannot be construed as supporting the
existence of an "emergency".
Neither can the Board find support for the Organization's claim, because
i
it failed to show that the Claimants-who were on their rest day-were
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available. Without evidence of the Claimants' availability, their claim cannot
be allowed.
AWARD
Claim 1- sustained.
Claim 2 - disallowed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION
ATTEST: William B. Jones
Chairman
E. J. McDermott
Vice Chairman
Dated at Chicago, Illinois, this 9th day of December 1964.