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Fore I NATIONAL RAILROAD ADJUSTMENT HOARD Award No. 6732
SECOND DIVISION Docket No. 6463
2-C8NWT-CM-'74

The Second Division consisted of the regular members and in addition Referee Louis Pagoda when award was rendered.

( System Federation No. 12, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ((Careen)
( _
( Chicago and North Western Transportation Company,

Dispute: Claim of Employes:,'

1. That the Carrier improperly assigned carn:en wrecking crew members not covered by.the current agreements and employes of a private company not party to the agreement to perforce wrecking service a t Whiting, Iowa on December 25, 26, 27 and 289 1971.

2. That accordingly, the Carrier be ordered to additionally compensate Carmen J. D. Tunzer, L. Jenkina, J. Adkina, P. Simon, G. Gubbels, D. Gaffey and J. Weathertll, in the amount of forty-two (42) hours each at the time and onehalf rate.

Findings:

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

The carrier or carriers and the employs or employes involved in this dispute are respectively carrier and employs within the leaning 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.

Certain facts are stipulated. On December 25, 1971 one of Carrier's trains became derailed at Whiting, Iowa. Whiting is 57 rail miles from Council Bluffs, Iowa. No car4en are employed at Whiting. Carmen are employed at Council Bluffs. Claimants identified in claim are regularly assigned at Council Bluffs and were available for assignment on the night of December 25, 1971.

Carrier decided not to call out wrecker equipment and wrecking crew frog Council Bluffs but instead called out 3 carmen from MarshalltoWn, Iowa. Marshalltown is approximately 165 miles from the derailment site. Those called frog Marshalltown are covered by the Agreement of another carrier - Minneapolis and St. Louis Railway Company. In addition4 Carrier called in 4 employees of a private company with aff-track derricks (also from Marshalltown) to work with the three others.
Form 1 Award No. 6732
Page 2 Docket No. 6463
2-C&NWT-CH-' 74

The seven employee worked 182 hours, December 25th, 82 hours December 26th, 8 hours on December 27th and 7 hours on December 28th, 1971.

Employes rely on: the Preamble to the Agreement identifying the functional coverage of said Agreement; Rule 124, stating in part: "Wrecking derrick engineers ...and all other work of the same class generally recognised as Carm4n's work"; Rule 29 reading, in part: "none but mechanics and apprentices regularly employed as such shall do mechanics'. work as per special rules of each craft"; Rules 126 and 127, which read:

"Wrecking crew, including engineers and firemen, shall be composed of regularly assigned carmen, and will be paid for such service as per general rules. Meals and lodging will be provided by the railway company while crews are on duty in wrecking service.

Except as otherwise provided, this agreement shall apply to those who perform work herein specified in

the Maintenance of Equipment (Car and Locomotive),

Maintenance of Way., Signal Maintenance, Communications

Department, and all other departments of the Railway Company

wherein work covered by this agreement is performed. ,,w

All or pert of regularly assigned wrecking crews, as may be deqnired, will be called for wrecks or derailments.

This does not preclude using other employee to pick up or clear minor derailments when wrecking derrick is not needed:"

Pointing oat that 11 cars were derailed and that it took a four-day
period of 42 hours to clear it ups Employes maintain that the derailment
in question was not minor and accordingly Carrier was obligated to call
regglarly assigned wrecking crews.
Carrier's position is:
(a) Claimants at Council .Bluffa did not have an exclusive right
ti wrecking service
(b) no role in the Agreement makes it mandatory that a Carrfer
oxned wrecker derrick be used on all derailments,
(c) the three Careen from Marshalltown had as many contractual
rights to perform wrecking service at Whiting (a point where
no Carmen were mployed) as the claimants who held point
seniority at Council Bluffs; the sea used were licensed
escort drivers, customarily used in connection with nee of r,ar
the Marshalltown contractors

Form 1 Award No. 6732

Page 3 Docket No. 6463

. 2-C&NWT-CM-'74

(d) since Carmen do not enjoy the exclusive right to all wrecking service outside yard limits, and there was no contractual obligation upon Carrier to call the Council Bluffs wrecker derrick, there was no violation of the Agreement when the "off track" equipment and operators from an outside concern were used by Carrier in clearing this wreck.

The scope rules cited give assurance that "wrecking crews" shall include catrmen, that "wracking derrick work" is one of the duties of carmen and that, all or part of regularly assigned crews, "as may be required" will be called for wreck or derailments, but other employees my be used "to pick up or clear minor derailments when wrecking crew is not needed". There is, however, no explicit proscription against the use of outside contractors.

It is our opinion that resort say be had to such outside work, under the existing contract rules, when there is (a) a reasonable showing of necessity for.methods, materials or equipment not available to Carrier from its own resources and (b) use or operation of such cannot be handled by its own personnel whether because of differences in skill, lack of internal manpower or because contractor's resources are unaiAilable without use of tatter's employees. We believe that both these conditions were present here. Carrier's choice of off-track mobile equipment appears, Eros the record, to have been a permissibly valid use of its managerial judgments despite the fact that it had to be brought from a point 165 riles from the derailment in preference to the use of a wrecking crew only 57 ilea away.

Once such a decision was lade, management was no longer dealing with a "wrecker crew" within the meaning of the contract scope rules.

As to the use of three employes of M & S? L, rather than Claimants, it is not disputed that the latter line had been acquired by C & NWT and an agreement was then lade consolidating the forces of both lines at Marshalltown and that both were thereafter governed by the M & ST L Federated Craft Agreement. Inasmuch as the point involved was outside. yard limits and no carmen were there employed, no superior seniority of the Council Bluffs employes was enjoyed over those from Marshalltown.

. Given the undisputed fact that licensed "Escort Drivers" (licensing

required by the State of Iowa) were needed to accompany the equipment

and certain carmen positions at Marshalltown are bulletined as such,

Carrier had good practical reasons to choose employer at Marshalltown

for use as escorts and then to utilize then at the wreck site 'for the

hooking and handling of cables in connection with the work of the outside

contractor.

Form 1
Page 4

A WA R D

Clam denied.

Award No. 6732
Docket No. 6468
2-C8r1VWT-CM-' 74

NATIONAL RAILROAD ADJUSr4rNT BOARD"
By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

By

o eaarie Brasch -Wa-Mistrative Assistant

Dated at Chicago, I11lnois, this 17th day of July, 1974.