The Second Division consisted of the regular members and in
addition Referee John J. McGovern when award was rendered.
EMPLOYES' STATEMENT OF FACTS: Sometime after midnight on November 19, 1969 a derailment involving thirty-six (36) freight cars occurred at Mile Post 553 south of Tyler, Texas, and the Texarkana Wrecker Crew was called at 2:00 A. M., November 19, 1969. They left Texarkana at 3:40 A. M. that date, and arrived at the north end of the derailment at 5:30 A. M., where they worked straight through until 8:30 P. M. on November 20. This Crew was called at 5:30 A. M., Novemberr 21, 1969, and worked the north end of derailment until 10:00 P. M., at which time the Main Line was clear and train service had been restroxed. 1. A Wrecking outfit and crew of the Southern Pacific Railway Company, which had been working the south end of the derailment was released. The Texarkana Crew returned to home point
Although the Employees allege the Pine Bluff relief outfit was available during the period November 24 - December 3, 1969, it was pointed .out in conference on the property that the Pine Bluff relief crane and crew were used at a derailment at Stamps, Arkansas on November 30 and December 1, 1969, and obviously were not available to have been used at Mile Post 553 on those two dates. Therefore, any claim for the carmen in the instant case on those two dates could not be valid.
It was also pointed out that Carman T. E. Ashcraft was on vacation December 1- 3, 1969, and Carman H. E. Gatlin was on vacation December 2 - 3, 1969, and they were not available for service on such days.
Carrier also submits that there could be no valid claim for P. C. Holtzclaw, Cook, and L. Petty, Assistant Cook, as Rule 90 specifically excepts cooks.
In conclusion Carrier submits that there was no violation of the agreement and respectfully requests that the claim be denied.
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 tht meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On November 19, 1969, at approximately 1:15 A. M., a derailment occurred on Carrier's line blocking the main track. The latter was cleared and ready for passage of trains at 4:00 A. M., November 20, 1969. Additional work was required in and around the scene of the derailment requiring th-e use of the two relief cranes and bulldozers until the evening of November 21, 1969. From November 24 to December 3, 1969, bulldozers were used to clear the axea, 'etc.
The work was performed by Carrier's Texarkana relief crane equipment and crew assisted by two bulldozers and one side-boom bulldozer furnished by an -outside contractor.
The instant claim has been submitted by the Pine Bluff Wrecking crew on the grounds that they should have been afforded the opportunity to perform the work in preference to the outside contractor. They rely principally Rules 34-1, 87 and 90, all of which in pertinent parts read as follows:
The Classification of Work Rule (87), specifies "and all other work generally recognized as Car-Men's work." Although this rule do-es not include "wrecking service" as such, the Organization arguendo avers that such vrork is generally recognized as their work. Further, Rule 34-1 provides that one must be "regularly employed" by Carrier to perform the work, and since the employes of the outside contractor are not so "regularly employed," Carrier has ignored their basic rights to work.
We take cognizance of the arguments propounded by the Organiaztion but do not find them to be persuasive. There is no showing in this record that claimants had an exclusive right to the work. There is no evidence, burden of which is on the Petitioner, to prove that by engaging the services of an outside contractor. Carrier ipso facto has violated the agreement. The use of the word "when" is highly indicative of the non-exclusive nature of the work performed. We find no contractual prohibition against the employment of an outside contractor. We will deny the claim.