C:\AWARDS\OUT\2-06582.htm

Form 1 NATIO1iAL RAILROAD ADJt3ST',::riu1 BOARD Award I'o. 6 5fZ2 SECOND DIVISION Docket ',,To. 61;1,-7 2-IC-C:::-'73 The Second Division consisted of the regular members and in addition Referee Irwin M. Lieberman when award was rendered. ( System Federation No. 99, Railway -7nployes' ( Department, A. F. of L. - C. I. 0. Parties to Dispute: ( I (Carmen)

( Illinois Central Gulf Railroad Company

Dispute: Claim of L~iploves: 1. That the current agreement was violated when the Carrier used Hul c::er Emergency Service, an outside contractor to help clean up a derailment at iyiagnolia, Mississippi, on August 26 and 27, 1971. 2. That accordingly the Illinois Central Railroad be ordered to compensate R. T. Boyd, R. W. Kennedy, E. G. I Lay., L. H. Toney, who are ,members of the wrecker crew; and D. G. Godbold, P. E. Gu,,1T, D. L. Chase, F. D. Alexander and J. T. Dickerson,, me=mbers off the overtime : board, for seven ( 7 ) hours and twenty (20) minutes at overtime .rate of pay for each member of the wrecker crew and members off the overtime board, .for August 26 and 27, 1.971. F3 int;s~ . The :Second Divison 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 ecaploye 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. A derailment occured at Magnolia, Mississippi on August 25, 1971. The McComb, Mississippi wrecker with its regular wrecking crew plus one extra groundman from the over time board departed at 9:00 P.M. that night and worked August 26 and August 27 in the rerailing operation. The main line was blocked and a number of cars were derailed. Carr' also called Hulcher -L'morgency Service, a private contractor, to assist the rerailino61ori,; this was accomplished with a crew of eleven Hulcher employees and the necessary equil:.snt, Claimants in this :latter are the regularly assigned members of the wrecking crew plus -.'L'ivc carmen from the overtime board. Petitioner asserts that Carrier violated the applicable agreement by t:he use oz the Hulcher Emergency Service employees rather than its own carmen. The folloi,7ing rules (in .pertinent part) are relied on by the Organization: "Rule 130 - Regular assigned wrecking crews, excluding engineers, will be co:r.posed of carmen and will be paid for such service under rule 12.''' Rule 131 - When wrecking crews are called for wrecks or derailments outside of At:ard No."- /5F,'2 Form 1 Docket NO. 6447 Page 2 2-IC-C:~--' 7j yard limits, the regularly assigned wrecking crew will accompany the outfit ...."- In its submission, Carrier took the posistion that the Board lacks jur:id.iction over this dispute since the 1iationa1 Shop Craft Agreement of September 25, l-NN64' vested exclusive jurisdiction for disputes involving subcortracting in a Special Eoard of Adjustment. However, subcontracting under that Agreec,ent is restricted solely ;,o work covered by the classification of work rules, which does not include wrecking crow activity. In declining to take jurisdiction over a wrecking service dispute, the Special Board of Adjustment No. 570 said · in Award P?o. 232: "We find that wrecking, work is indeed not set -.forth or covered in the Car: :en's classification of work rule, and that this dispute is outside our jurisdiction.' See also S. B. A. No. 570 Awards 264 and 261. Further it should be noted that this Board has in the past on a nrunber of occasions asserted jurisdiction over similar subcontractin, disputes (Awards 6059, 6257, and others). For these reasons we shall deny Carrier's jurisdictional contention. Petitioner cites Award .6257 as controlling in this dispute. In that matter we held that the Carrier ignored its. obligation to justify the use of non-employees to perf o: wrecking service work whic1i its own employees were available to do. Further, in that cas, we said: "Our holding in Award 41.90 declared that the determination as to the reed for a wrecking crew was a matter of management discretion and judgement but Caution that this may be successfull;· challenged if the Carrier's action in this ree~e.rd is arbizrar~r, capricious, discriminatory or an abuse of rnanac,erial discreziDn.. it becomes incLUioent upon the Carrier to offer a reasonable explanation for its need to utilize other employees and most particularly total strangers to t.1-.e Railroad in place of there. Its failure to do so brings it within the lirai ratio upon its use of its discretion and judgement referred to hereinabove." The case before us may be distinguished from award 11o. 6257 in that the Crier in this dispute specifically and consistently alleged that the situation calling, for the rerailing activity was an emergency caused by the blockage of the main track. This contention was never denied by the Petitioner. Further, Carrier contends and it is not deni that the outside contractors' equipment was needed to clear the track expeditiously. In closely related case, Award 61+90, the Organization challenged management's decision and d cretion in using an outside contractor; we found that the Carrier had not- established tire fact of an emergency and sustained the claim. It is obsrious that the contractor's forces performed wori; at the derailment w:;i normally would be perf or coed by carmen covered by the applicable agreement (specific-ally a a minimuri) adjusting wedges and brass at the ends of the cars. We rave long held that ev though certain work of wrecking crews is generally recognized as carmen's work, the Carri is not alwails obligated to call a wrec,ing crew for a wred> or derailment outside of yard iirr,its (Avrard 155'). We have also held that when a wrecker is taken to a derailment it :i: be accompanied by the regularly assigned men in sufficient nu=r;oer to handle the wor'.. (-~ -d 2043 and others). T'he recognized exception to these well e3tablished pxinciplcs i tha' outsiders (either other crafts or employees of other companies) mar be used to per~.'~ wrecking crew functions under conditions of e~:iergency (Awards 2048, 4222, 5391 7_ j5; ) . F, o- rr1 1. _ Award nTo.65P2 Page 3 Docket :To. 6147 2- I C- c-:- t 73 ' In the case before us, there is evidence that an emergency existed, there is no evidence that the outside forces performed any work at the site after the eMer~,ecy ceased to exist, and there is no evidence that Carrier abused its managerial peroL-atives under all tae circucastances. In view of the foregoing, we find that there has been no violation of the Agreement. A W A~R D Claim denied. TMTIONAL RAILROAD ADJUSIIMEET BOARD By Order of Second Division Attest: Executive Secretary P1ational Railroad Adjustment Board B"--~- ~7 J Rsemarie brasch - A Uminlscrative Assistant Dated at Chicago, Illinois, this 111th day of TTovember, 1973.