tm 1 NATIONAL RAILROAD ADJUSTIVIEZV''f BOARD Award No: 6596
 SECOND DIVISION Docket No. 6379
 2-PT-CM-'73



Parties to Dispute: ( (Carmen)
 (
 ( Portland Terminal Company

 Dispute: Claim of Employes: '

              1. That the Portland Terminal Company violated the provisions of the current agreement, namely, Rule 97, on October 21, 22, 23, 2I+, 25, 26, 27, 28 and 29, 1971, and on November 1, 2, 3 and I+, 1971, while engaged in wrecking service at Clinton, Maine, on the Portland to Bangor Main-Line.


          2. That accordingly, the Portland Terminal Company be ordered to

          additionally compensate the entire wreck crew, who were not

          used on this assigrm.ent, namely, Carmen R. E. PaLmer, E. A. Dunham,,

              H. L. Harriman,, G. H. Colton, F. G. H,~n; L. M. Dorr, G. W. Rounds, and 11. L. Campbell, for all time that the Rigby wreck outfit was engaged in wrecking service at Clinton, Maine, on the foregoing dates, at the carmen's applicable rates of pay under Rules 7 and 4 (f) of the Agreement.


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.


Subsequent to a derailment at Clinton, Maine the Waterville wrecking crew was called to handle the emergency. In addition the Bangor wrecking crew was called to assist. On October 21, the crane from the Bangor wrecking crew was damaged to the extent that it was sent to the shop for repairs. At that time the Carrier called the Rigby crane and the operator of the Rigby crane to the scene of the derailment. No other members of the Rigby wrecking crew were called for services.
 orm 1 Award No ;..6596
 Page 2 Docket No. 6379
 2-PT-CM-'73
It is the position of the organization that the Carrier violated the agreement in not calling the entire Rigby wrecking crew. The alleged violation is based on Rule 97, which reads as follows:
                "RULE 97 - MAKE UP OF WREC'~TG CREWS - When wrecking crews axe

          called for wrecks or derailments outside of yard limits, the

          regularly assigned crew will accompany the outfit. For wrecks

          or derailments within yard limits, sufficient carmen will be

          · called to perform the work."


As we apply Rule 97 to the instant matter, the key words are, Nhen wrecking crews axe called . . . the regularly assigned crew will accompany the outfit." The Carrier alleged that it is within its prerogative to assign the pieces of equipment it wishes "in the manner it deems is in the best interest of the company." They further allege that there is no rule in the agreement that; assigns a particular crane to a particular crew: Nonetheless, the Carrier is contractually bound by Rule 97 to utilize the regularly assigned crew members on equipment it utilizes outside the yard limits.

 In the instant matter there is no basis for the Carrier calling .the entire Rigby ~rrecking crew to operate the era: e, It is the opinion of this
    -,ar~ ~,, y~ .n .~ r _ .. ~-m .a.

.11frrcu~, however, uilciwu a ou.ifl~iciiii iatuuirC:i ~l i:i.%i~j%ct.'u iic~c:~usiy uv vp~iiltc^. ti~i~iiiiaC should have been utilized from the Rigby wrecking crew.

 The Carrier has argued to this Board that the utilization of the Rigby crane at Clinton was utilizing of same on a property over which the claimant organization has no contractual rights. The Carrier cited a substantial number of awards to substantiate its position in this regard. A review of the record reveals that this issue was presented for the first time at the hearing before this Board. It is axiomatic that it is incumbent upon a party urging such a position that the same must be presented at some time prior to the appellate level.

 It is the opinion of this Board that the Carrier shall compensate under Rules 7 and l+(f) the members of the Rigby wrecking crew which normally have been called to operate the equipment utilized at the Clinton derailment.

                              AWARD


            Claim sustained in accordance with the above findings.


                              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board _

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    .

    , _


      Rose rie· urasch - Administrative Assistant


Dated at Chicago, Illinois, this 15th day of November, 1973.