z'' ~r~. 1 NATI0YAL Wz =G_01 ADJUSTDiKiT E0.11RD Award NO. r4°^




( Syster Federation No. 29, Railway F~qployes'
 ( Department, A. F. of L. - C. I. 0.
 Parties to Dispute: ( (Carmen)



















Findings ;

 The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that: f
 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.

A derailment occurred at Shubuta, Mississippi at 10:45 AM on Friday, June 18, 1971. Thirty three cars were turned over or derailed. Shubuta is 39 rail ^qiles south of Meridian vherc Carrier had a wrecking outfit and 96 miles north of 1 abile, Alabama where Carrier maintained a 75 ton wrecking derrick. There is a
 :sing track located at the scene of the wreck. Hzlcher r.'`nergency Railroad Service;, w,t outside contractor was called to assist.

Form 1 Award No. 03490
 Page 2 Docket No. 6285
 2-GM-Chi- ' 73

 In Exnployes' rebuttal, the organization has objected to items of the Carrier's submission on technical grounds. It objects to Carrier's Exhibit "B", referred to in Encploye's Rebuttal p.8, as No. 2, because the exhibit was not attached to the copy of the submission received by it. It objects to Carrier's submission p.2, which states that Hulcher used fourteen men. Throughout the handling on the property the organization stated that twenty-five employes of Hulcher aided at the wreck site. None of the Carrier's officers disputed this fact at any stage. Objection is made to Carrier's statement in its submission that the 75 ton wrecking derrick could not have served a usefull purpose at the wreck site. This is set forth for the first time and the issue was not raised in the handling on the property.

 At the hearing, the Organization voiced objection to Carrier's Rebuttal wherein for the first brae an undated letter from its General Superintendent describing the condition of the passing track is set forth and, for the first time, the contention is made that the passing track was blocked. Objection is made to the claim of Carrier for the first tire, in its rebuttal, that at least eleven of the claimants were not available. Objection is made to Exhibzts A and B of Carrier's subiaission as not submitted in the handling of this claim: on the property. The same objection is raised as to Lzd:ibits A and B of Carrier's rebuttal.

        I'-. is ia:t.. hat both parties to a dispute ?::i~::; each other's contentions

~ kru~rta~. t:.:.
 an'. ti:e issues to be resolved. "'his should start during tine hwn~'Iling nn tile proper
        ti hn 7 c. ,~ l~

1'.7~:(:fl'_~..,; , vrin :)Fat:_C:S L:' t'_: %i1 resolve their C~lfi::r nCG'S `"">>_untari:_,~. In a~diti.0n,
 ':his Drcr. 2s concerned trilcn ::1^teria~_ is presented for tile first time by one party
 A13_cli t.;~: other party 'Bas a-v'U- : oii the opportunity to ors-:cr. Tile ir:portance of these
 :: ' a..~·:: 1 ,. -`~*1 to the function rx pury ^Ge - of the Board i.~ ^ e·..pressed
 r)~1..:!_eG LU1~e;.~N· :":1C.1 iCii aC' ~ ~ .
 in Nation -a Railroad Adjusticnt 'Uo;rd Circular I·To. 1, issued October 19, 1934. It has
 been .^Eiphasized by this Division i-1 Circular "A", da.t^d Junc 1., 1936, reprinted
 Oct~b^-r '_, '953, and by 8^s^3_ution ^:C this Division adopted !,:arch 27, 1936, reprinted
 i'ebrusry 1G, 197'1. Second Division Award No. 51~21, followed this doctrine in stating: I
 "It i.z %rcry apparent that the above lettered Eidlibits i-rere not submitted on the property I
 and thct this Bard cannot consie?rr such ;!>:bibits in the determination of this dispute."

 Accordingly, we sh,:ll not. consider the letter froil the Hulcher Company and its :;asps showing locations. We shall not consider Carrier's .yshibit D, nor the undated letter from its General Superintendent regarding the condition of the passing tracjs. Neither shall we consider points raised for the first time regarding the availability of claimants, that the passing traci_ was blocked, that the equipment from Mobile
 cool;:. not be used, or the number of men used by Hulcher at the wreck site. Although. i
 the Carrier uniformly denied the claim in each stage of the handling on the property
 solely because t?1e claim was not supported by the rules of the agreement, we will
 consider the question of emergency. 'vie accept this contention because it may be in
 ferred fran the letter, Employes' &cilibit A-15, but primarily because the possibility I
 of amer-ency is inherent in the factual statement.
                                                              i


As to merits, the organization claims that the Carrier violated Rule 509 and W,-e 33 of the Agreement by failing to utilize the vrreci:ing equipment at Mobile. and by engaging an outside contractor whose employes perrormed carmen's work.
 Form 1 Award No. 64go
 ( Wage 3 Docket No. 628,
 2-GNW-Chi-' 73

          The C3xrier has countered with the ccr_tention that this was a main'

line trachahich was blocked thereby constituting an emergency, and that in an
 emergency the Carrier has the right to do anything to clear the track and get
 trains moving. The Carrier also has argued that the scope rule for Carmen does
 not assign wrecking work to them exclusively; that this case should therefore, be.
 dismissed on the authority of Award No. 261 of Special Board of Adjustment No. 570,
 in a comparable case, between the sane parties.

 Reading Award 261 , ire find that the Carrier called its wrecking equipment and crm-r which was not able to handle a condition involving the leaking of a highly flammable chemical from one of the cars. While the Carrier's eTrecking crew stood by, Iiulcher used its special izes< personnel and equi_=ent to ta'ie care of the problem after which the Carrier's crctl continued its work,. The claim was dismissed for lack of jurisdiction upon the autbority of previous Awards of that Board, apparently because the Caxmen's Class i"i_cation of ulor'.z Rules does not include wrecking service or rerailing of cars. It is not clear that this was a decision on the merits.

 We do not believe that this case resolved for all time all claims based on the use of outside contractors. on the contrary, Awards on this subject have been submitted by the Carrier, each decided ox. its mm facts. Essentially, the result revolves around whether. or not an emergency ef isted, whether or not the Carrier's equipment and crews could have done the work, if they were readily available and, depending on the circumstances, was the use of outside wrecking equipment nd crew required or advisable. This does not contradict or do violenec to the
 ''General iAarposes" of the Railuay Labor Act. The legal positions of stare decisis j
 and res adjudi cata urged by carrier are obviously debatable, depending upon the
 facts of a case. Althou& interposed as a defense in countless lawsuits, these
 defenses are sometimes sufficient ici..ent, and so^ieti:nes insufficient. Carrier's contention
 that Avard IT,). 261, :rust be follower. in this case is not conclusive as to the result;
 to be reached.

 C.^<^rrier has subm.ittcd a. number of prior Awards to justify its action in engaging the Hulcher Company. On^ Award hold that in a pain line bloc'zage "a ybody can do anything to clear the Main Tine within a reasonable length of time", p.8 of Carriers submission. (If an emergency eXists, why limit action to a "reasonable length of time?"). Main Line interruption nay not be the only time an emergency develops. The existence of flarimable material, saving, li;·es, escaping poisonous fu.~:es may justif4j emergency action even if not on a main line. In Second Division AT-yard No. )+(62, an emergency existed within yards because livestock was involved, with a lega.7_ limit on time they could not be confined in cars. The carrie~ ;-ras justified in renting a, local true= crane and operators because the carrier's derrick was 100 miles away. Tt was determined that the carrier's derrick was not i
 suitable, necessary nor reasonably available. j

 In Second Division Award No. 4268, the use of outside equipment and help was found to be justifies: because a loaded freight car was in a precarious position, kept from tipping over by coupling to the engine. A main line vas not bloc%cd. but
 s _`china onera-1-ions to the nain line were disvip4-ed and C=rier's urec zing cquilvrent
    L U t - V T

( - s O1 miles a;;ay. i

                                                                I

Form. 1 Award No. iae It ~4aDocket No. ( 28( f
 2-GI~-Ct~i- t 73
 rr
 There is no doubt that main line blockage and urgent movement of trains are emergency situations but as in all emergencies judggrent is required to accomplish the necessary result. Second Division Award No. 10608, held that where mail trains were being tied up, use of outside help 30 miles wray was _=ustified because Carrier's equip:::ent was 155 miles away. In Av:ard No. 1065, Carrier was justified in getting heirs ' F ::;ales ar; ay ...,hen cl^-ants were 155 miles a:! wr because Array troop trains moving ip both directions werf being :held up. Li Award No. 155;', the emergency was created by :main lines bezn3 bioc'ued. It was a bad wrec': with 351 feet of trac': torn up, Zr? c-rs derailed, 23 caws beyond repair, 2 bodies were buried- in ore cars. outside helm wa.necessary to clear the trac':s. 'v-,Then the rain line was clear, the erergenc.· ceased to exist. A1thou[,lh cLearin- the reuains of the wreck was still to be a cco_ftpl isher~ as s,-,cn as possible, carrier was obliged to use its own forces for this purpose.

 In essence, the OrC.anization does not disagree with the policy adopted by the carrier. It has been urge: in its submission, in effect, that carriers are abusing the managecaent prerogative reserved for emergency situations. In doing so, it is contended, carriers are using outside help when emergencies do not exist, or coyitinuing t.^, iise outside help ::f ten the emergency has been overcome, or in using ^~;'~nr 1'.1:~1I": ~.a:'..~:.: t'~ !~ r_`~r:':C'.l:~:i t~^x': -t :'r^.^_', s :.rh,?n carnip_n are a,,-ai.lable. 7".:e
 r~aniz't'.-)n iias .,~_S^ cu:iniitte-1 .i:%ar''.'. 1550, to illu:tratn the use of outside men
 u':y^nd ±hpf''.ri^:1 -.·f er:cr-ency, and ';o do worl·. ncr^iLly p!'!rf`)rT^_ed' . by carmen.
 `2 :e same P^int is 'al° in ;;ccon`. Division. Amand I-lo. 4,-."l, in which the facts
 shner tt_at crrrier :,rFs using all of its a,-rrjilable equipment. It was justified
 i.rs -~n&:-P,ing outsl.,!e hell brat -.nl~,teUthe agreement by using outside personnel 001
 tW !37 wr'.r,_ :. which .~ 1"1_,_-.. . .. .._:i r'ot"'!^!1 : C 1cSfi).'E_'l_flc t?ri?.
In the present case, the Organization has challenged the use of management prerogative and discretion. Second Division Award ho. 6257, last paragraph of the Findings, states that a successful cha-Ilenge requires a finding of arbitrary, capricious or discriminatory action by the carrier, or abuse of managerial discreUion,Avard 4190. Also it becomes incumbent upon the Carrier to offer a reasonable explanation for its use of strangers to the railroad in place of its own employes. second Division Award 3 `29, indicates that the carrier claimed that its wrecking derr:Ici; ;was not needed, assigned part of a wrecking crew and called in outside help to right a tang: car that rad spilled acid. The Finding was that the carrier's right to decide when to call out the ;rrec%ing outfit and crew is not absolute; that the carrier should have called out the .rreclc derric'; and crew. 'Whether or not the claLaants are seer-:ing to substitute their judgment for that of carrier or to protect rights granted by the controllin6 --Zreerient depends upon. the facts, Award No. 4.186. In A.'rare_ No. 4222 , t. he carrier clair.,ed an e:re rgency ^nd the need (not explained) to rent ·.)utside equipment, -.;here no ..=: ing was availab'_e. This Division found that carrier. cou--!J have uses its o~:n f:vailable outfit for the T-or': performed by the rcntc, equi.;~:mnt .

 T'?C "acts .'.·f V7r, Yr^sent cas~_ ?ust be su'omi.tt-! f''.^ the test of whet w^s i!'rS=na ~l': nd IOe1'crl i:.:i_'.~:7.' ti=C circumstcnceso
 .,r. 1 t.·:·ard. r:.^. h1.t~r

 i,a~.a
 D-,c%et Nn. 6285
 2-Gi:-Ci=' 73

 It i.> . fact gnat the :ialer r eciuipment arrived at the wrec',-, scene at 9:3 0 M.I ^n the day of the wrec'; but did not co:nrlence operatic'ns until 5: C^ AM the next morning. This creates a doubt as to the validity, of the . ar g-tut:ent that it was an emergency situation.

 Carri^r's 75 ton irrec';ing derric': at Mobile could have arrived at the wreck t-rith all necessary emplnyes y late afternoon on the day of the wreck any'. c,
    ),-xae.ncPA ?r·;r% irlediately at tl^.e wrec'_r site ef an emergency existed.


        The acc-nt abl a rec^r-1 off ^rs n^ demonstrable proof that the

_mssing trac',. _:~;,?1d not be used. or thE.t 4-1-he derric' from Mc"bile cc-,:tld not

 h3~Te ''
    mane the ·,>^r::.


rend^ing th? t yt;e cirri^r '.sac'. the j rercgati're to e,:^rc3xe manaUerial l_t^creti^·ri, sub,`.,cct t·· ch::?.?.er.,e, therc h3.^. been n-) peas^nable c.cp-anati-i submittel by th- arr.er '-n exn' Sin ,!hy it was r:ore desirable to =.,rnit uratiJ_ ,-':3f7; P4 f -r ail outsii'4c r!ut:rit to :3rri:,e; and then to wait seven and one l:a.'.f hours to start -pc:rcti^ns. Emergency T.Tor'c t^ clear rain lines can b^ d·'ne a1u n J_f~a.

        Petitioner has the burden to prove its case. Relying on prior

~T-rarrts, ·,.re thins-. that sufficient fact: ex-wst in favor of the Ore;anization.
 .he carrier has not demonstrated thpt this was a compelling eraergency,
 that the Mobile equipment and cre:.r could not have done the -aor`:, that
 it had not suitable outfit and crcm available, that the outside company
 was either necessary or that it vas more reasonable to call in the
 Hulcher Company. _

 We find that the carrier violated Rule 50Q of the Agre elent b5- failing to call the outfit and crew of barmen from: T~obile. Z ie find that only carr»n assigned to the ret;uiax wrecking cr;n.· at :obile are entitled to pro ra:to pay for wor': not performed during their recognized straight tire hnllrc and overtime cor,,Yerlsation according to paragraph 10, of the General Rulrs, a s set forth in the A[-ree-pnt.

 The claim i s p)resentcd only for barren. V: a are not ma'r_ing
 a fininr, g as t-~, any ,)ther gasses of emnl^yes.
                                                                i I i

                                                                I


Form 1 Award No. '49n1
 page o Docket No. 6285
                                                          5

                                                2-W&O-CM-' 73


                          A W A R D


Claim disposed of according to the findings set forth, and the ascertainment of the names and number of carmen who would be entitled to payment and the amounts payable to each is remanded to the property.

                            NATIONAL RAILROAD ADJUST14ENT BOARD

                            $y Order of Second Division


Attest:

 TDce cut i.ve S : : cret ar~y

 Dated at Chicago, Illinois, this 2,101. r1ay if
 73

 I