The Second Division consisted of the regular members and in
addition Referee Harry Abrahams when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Carmen)
EMPLOYES' STATEMENT OF FACTS: At Elmore, West Virginia the Carrier maintains a Wreck Derrick and a regularly assigned Wrecking Crew, composed of Carmen G. B. DeHart, W. L. Hatcher, Jr. and C. D. Toney, Carman Helper, hereinafter referred to as claimants.
At Itman Mines, located a short distance from Elmore Shops, there was a derailment, and an earthslide, sometime prior to June 3, 1963, near the end of the empty supply track or tracks, above the loading tipple. The Elmore Wreck Derrick and crew was called and sent to the site of derailment and rerailed the car or cars that were accessible to the wreck derrick. Norfolk and Western Car No. 41840 was obstructed by debris, and the wreck derrick and crew returned to Elmore, leaving Car No. 41840, at site of derailment and earthslide. Subsequent thereto, Maintenance of Way equipment was used
Emphasis. is ours to the words "when" and "are called." "When" is a conditional word, a definition of "when," among other things, is "akin to if." It contemplate that in some circumstances, wrecking crews would not be used; if the wrecker is used, the regular wreck crew will be called. The words "are called" are plain to the extent of "when" a wrecking crew is called for a wreck outside yard limits as to complement of crew. Here, they were not called and no necessity therefore to load this one car. No repairs were made by the Maintenance of Way employes to this car, disconnecting of the trucks having been made by carmen. Later, carmen were used to block car for transit.
The operation as described above and as implied by this claim, is a narrow interpretation of the rules of the agreement, is unrealistic, and in our opinion, involves a strained construction of the rules. The Railway Company is obligated, by law, to use sound judgment in the conduct of its operations and has all functions not given away by agreement. The work in question in this case, and which the Organization is objecting to, is the picking up and loading of one hopper car while in the midst of a cleaning up operation. In relation to the work at band for the Maintenance of Way Crew, the removal of this one hopper car so that it could continue its operation was minor.
Attention is directed to the fact that the Carrier had the Elmore wrecker at the scene and while removing other cars, made an effort to remove N&W car No. 41840, but efforts failed due to the fact the cables broke. Efforts were abandoned after breaking cables on two occasions.
It is, therefore, obvious that the use of the Maintenance of Way crane to load the car in a gondola rather than move it aside while the crane was removing the slate slide was clearly necessarily in the interest of efficiency and economy, and proper under such circumstances.
The rule does not include any penalty when wrecking crews are not called, as it was obviously understood and agreed the rule only applied when wrecking crews are called and that they would not be called in all instances.
The Carrier affirmatively states that the substance of all matter referred to herein has been the subject of correspondence or discussion in conference between the representatives of the parties hereto.
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.
The claim is that picking up a derailed car and loading it consists of wrecking service and should have been performed by the regularly assigned Elmore Wrecking Crew instead of the maintenance of way men.
Derailed cars at Itmann Mines was close to the Elmore shops; a derailment and earth slide had taken place there prior to June 3, 1963.
Cars were to be removed, but on May 6, 1963, the Elmore wreck car tried to move car No. 41840, but failed as the car was 85% buried under debris. Efforts were abandoned after the cable broke twice.
The agreement states that when wrecking crews are called for wrecks or derailments outside of yard limits, the regular assigned crew will accompany the outfit.
The maintenance of way men that were present loaded the car in the gondola instead of moving the car aside. This was necessary and proper under the circumstances. The work was not wrecking service and did not have to be done only by the wrecking crew. It was properly done by the maintenance of way men.
The second paragraph of the Employes' Statement of Facts reads as follows:
On reading the Employes' Statement of Facts quoted above it will be noted that it was the carrier who denied that there was any such an agreement. In the findings. of the majority quoted below they say it was the Organization that denied there was any such practice; that there was such an understanding.
"According to past practice, in calling men from the Carmen's 'Overtime Board when the hump worked in excess of 21/z hours, which practice the Organization at first denied but later stated that there was such an understanding * * *."
It will be noted from the quote above from the Carrier's Position that the initial officer denied there was any such agreement that had been made with the Organization. It will be noted from the quote below from the findings of the majority they say the Organization denied that there was such an agreement.
The twelfth paragraph of the Carrier's Statement of Facts reads as follows:
It will be noted in the quote above from the Carrier's Statement of Facts they admitted the inspector worked 2 hours and 55 minutes beyond the close of second shift. It will be noted in the quote below from the findings of the majority they say the inspector stayed on until 11:00 P. M., his quitting time and left; then state that the carrier did not violate the agreement by not assigning overtime work which was not needed.
The foregoing shows the discrepancies indulged in by the majority in arriving at their conclusions in Award 5196. We, the Labor Members, dissent.
The same confused and extravagant findings are used to deny Awards 5193, 5194, 5197, .5198, 5199 and 5200 and we therefore likewise dissent tothase awards.