( Department, A. F. of L. - C. I. 0.

        Parties to Dispute: ( (Carmen)


                        ( Illinois Central Gulf Railroad Company


        Dispute: Claim of Employs:


                1. That the Carrier improperly used employes of a private company and their equipment to assist the wrecking in clearing up a wreck of three (3) locomotives on October 9, 1971 and also clearing up a wreck of ten (10) freight cars on October 10, 1971 instead of calling additional amount of carmen.


                2. That accordingly, the Carrier be ordered to additionally compensate carmen:


        W. E. Presson J. H. Sipes

        y W. Q. Boyd. G. F. Potts

        A. M. Smith D. R. Lee

        E. L. Wyatt F. B. Gowan

        H. G. Mount W. L. Stewart


                -in the amount of five (5) hours and thirty (30) minutes at overtime rate for October 9, 1971, ten (10) hours at overtime

. rate for October 10, 1971 and two (2) hours travel time each
                direction at overtime rate for the above carmen who could have

                been at the scene at the same time the rest of the Jackson,

                Tennessee crew arrived; which was about two (2) hours before the

                private company arrived.


        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.

Form 1 Award No. 6821
 Page 2 Docket No. 6668
 2-ICG-CM-'75

 On October 9, 1971 there was a derailment at Dyer, Tenn. consisting of 3 locomotives and 10 freight cars. The Jackson wrecking crew was dispatched to the derailment site arriving at 5:05 P.M. At approximately 7:00 P. M. the Hulcher Emergency Railroad Service, a private contractor, arrived with 3 bulldozers, 3 operators, 2 foremen and 10 groundmen to assist in the wrecking service. It is the Organization's position that Carrier failed to call sufficient carmen to perform work at the derailment, particularly since 10 groundmen from Hulcher Emergency Service were used. They contend that Carrier should have called 10 regularly assigned carmen to assist the wrecking crew rather than using 10 groundmen who are strangers to their collective bargaining Agreement.

 It should be noted at the outset that all members of the wrecking crew were called for the wrecking service. The claim before us does not refer to members of the wrecking crew who were not called, but to regularly assigned carmen at Jackson, Tenn. who, the Organization claims, should have been called to augment the wrecking crew. This distinction renders many of the Awards relied on by the Organization inappropriate. See, for example, Awards 2048, 3629, 6703 and 6257.

      Carrier insists that it was justified in utilizing the Hulcher

.,Emergency Railroad Service to assist in the wrecking service since the derailment constituted an emergency necessitating immediate action on Carrier's part in order to resume rail operations through.Dyer.

 It is axiomatic that Carrier is justified in using outside forces to perform wrecking service where an emergency situation exists. See Awards 6490, 6582, 6703. However, merely alleging that an emergency existed will not suffice for Carrier must establish that such was the case. In the claim at hand, the Board concludes that the derailment of 3 locomotives and 10 freight cars at Dyer, Tenn. constituted an emergency justifying use of the Hulcher Company groundmen to assist the wrecking crew. It is not disputed that the derailment blocked Carrier's main line in the city of Dyer and disrupted all service on that portion of the railroad. This, in our opinion, constituted an emergency demanding immediate action on Carrier's part. Since Carrier was thereby justified in using the Hulcher Company groundmen to assist the wrecking crew, claim on behalf of the regularly assigned carmen at Jackson is consequently without any support.

                      A W A R D


      Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 v
By
 11 temarie Brasch - Admin~rativeAssistant Dated at Chicago, Illinois, this 28th day of February, 1975.

:ECEivEU

M.AH 2 1 1191:;

G. M. YUUHN


CARRIER S' :RESPONSE TO LABOR MEMBERS' DISSENT
 TO
 AWARD 6821, DOCKET 6668

 The dissent of the Labor Members consists primarily of a rehash of the arguments presented to the referee by the spokesman for that group prior to the award being issued. The arguments were found wanting when presented and repet1tion in the dissent does not increase their validity, or detract from the Award.

 The Referee in Award 6821 correctly found that an emergency existed. The derailment blocked Carrier's main line in the City of Dyer, Tenn., disrupting all service on that portion of the railroad. In the handling of the dispute on the property the Petitioner did not dispute that an emergency existed.' Furthermore, it is well settled by awards of the Second Division, as well as awards of the Third Division that when a Carrier's main line is blocked an emergency exists and Carriers are granted broad latitude in meeting such an emergency, including the use of outside forces. See Second Division Awards 1559, 5391, and 6582, and Third Division Awards 13856, 14372, 15846, 17524, 17795, and 18089, among others. Second Division Award 2987, quoted from in the dissent, dealt with an entirely different situation.

 Award 6821 is sound, supported by the record and numerous precedent awards. The Monday-morning'quarterbacking by the Labor Members does not detract from the Award or impair its value as precedent.

    ...ECEIVE~

    ' MAR 2 1 119TH


              G. M. 91YHN

              LABOR MEMBERS' DISSENT TO AWARD NO. 6 ,


                        DOCIKET NO. 6668


            As a basis for denying the claim in Award No. 6821, Docket


      No. 6668, the majority setforth the following facts:


                "On October 9, 1971, there was a derailment

                .at Dyer, Tennessee, consisting of three (3) locomotives and ten (10)freight cars. The Jackson Wrecking Crew was dispatched to the derailment site, arriving at 5:05. P. M. At approximately 7:00 P.M. the Hulcher Emergency Railroad Service, a private contractor, arrived with three (3) bulldozers, three (3) operators, two (2) foremen and ten (10) groundmen to assist in the wrecking service"


            From these facts taken out of context, the majority con-


      cluded that an emergency existed and denied the claim stating:


~,-- 'Olt is axiomatic that Carrier is justified
                in using outside forces to perform wrecking

                service where an emergancy situation exist,

                See Awards 6490, 6582, and 6703. However,

                merely alleging that an emergency existed

                will not suffice for Carrier must establish

                that such was the case. In the claim at

                hand the Board concludes that the derailment

                of three (3) locomotives and ten (10)

                freight cars at Dyer, Tennessee, constituted

                an emergency justifying use of the Hulcher

                Company groundmen to assist the Wrecking Crew.

                It is not disputed that the derailment blocked

                Carrier's main line in the City of Dyer and

                disrupted all service on that portion of the

                railroad. This in our opinion, constituted an

                emergency demanding immediate action on Carrier's

                part."


            Referee D. Emmett Ferguson stated in Second Division Award


      No. 2987:

                  "Each emergency must be determined in the .light of all existing circumstances and facts confronting those involved."

        The Labor Members submit that the facts in this case does not support the Majority's Finding. If there was an emergency as claimed by the majority, there wasn't any reasonable excuse why Carrier should not have called the Claimants.


              On page 2 of Carrier's Submission they setforth the follow-


        ing facts:.


                  1. Claimants were employed at Jackson,

                  Tennessee.

        This is the exact point from which the derrick and crew was dispatched.


2. The derailment occurred at 10:45 A. M.
 October 9, 1971. The Jackson, Tennessee
 ' derrick and crew were dispatched from 1_rr"
                                                                )

                  Jackson at 1:30 P.M.

        Therefore the derrick and crew did not leave Jackson until two (2) hours and forty-five (45) minutes after the derailment occurred.


                  3. Hulcher Emergency Railroad service was called and arrived at the derailment site at 7:00 P.M., October 9, 1971.


                  (a) The Jackson derrick and crew arrived at 5:05 P.M.

        Hulcher Emergency Railroad Service arrived at the derailment site eight (8) hours and fifteen (15) minutes after the derailment occurred.


                                -2- (DISSENT TO AWARD NO. 68;'

                                                                1

                                                              ~ i

            (b) They worked from 7:00 P.M. October 9th, until 12:30 A.M., October 10, 1971. They were relieved_ at this time and rested until they resumed work at 7:00 A. M. of the same day, working until 5:00 P.M., Page 2 of Employes Submission.

We contend that if the "Emergency" claimed by Carrier was so great the six (6) hours and thirty (30) minutes rest would not have been permitted.

 4. The claim was made for only the ten (10) groundmen provided by Hulcher, not for the three (3) bulldozer operators and two (2) firemen.

 It is obvious from the above. facts of record that an

 'Emergency" did not exist, the Claimants should have. been called and used instead of the ten (10) groundmen of Hulcher Emergency Railroad Service. In fact there was no valid reason why carrier could not have called Claimants at the same time they called the Jackson derrick and crew. Since it has been proven the Claimants would have arrived two hours (2) earlier than Hulcher Emergency Railroad Service.
 A number of Second Division Awards were furnished the Referee which substantiated the Employes position. One of which was second Division Award No. 4581, wherein Referee Joseph M. McDonald stated:

            "What is distrubing however, is the use of Higgins' personnel to man the crane and the rigging. It is clear that the riggers were performing work at the scene of the derailment which comes within the Carmen's 'Classification of Work' Rule. Claimants were available for this work and should have been called.


(DISSENT TO AWARD NO. 6821)
            There is no showing that Carrier, in hiring the Higgins outfit was obligated to take Higgins' personnel to act as a ground crew, and we express no opinion of our disposition of that issue had it been presented."

Referee Anrod stated in his Findings in Award No. 3954, the pertinent part of which reads:

            'it is a well-established rule of law generally observed in the application and interpretation of a collective bargaining agreement that such an agreement, as a safeguard of industrial and social peace, should be given a fair and liberal interpretation consonant with its spirit and purpose -disregarding, as far as feasible, strict technicalities or undue legalism which would tend to deprive the agreement of its vitality and effectiveness. See: Yazoo & M.V.R. Co. v. Webb, 65 F. 2d. 902, 903 (Ca-5, 1933) ; Arbitration Award in re Cameron Iron Works, Inc., 25 LA 295, 299 (1955). * * *.'r


The majority failed to carry out the sound and reasonable interpretation of tile word "Emergency" as setforth by Referee D. Emmett Ferguson; as well as the established rule of law as setforth by Referee Anrod.

        Therefore, Award No. 6821 is palpably erroneous.


G. R. DeHague, Labor Member William 0. Hear ,Labor Member

                                                E. J. Dermott,.Labor member .,

D. S. Anderson, Labor Member ; ~ ,, ,^ ~_,J . -

                            E. esaerb, Labor Member


(DISSENT TO AWARD NO. 6821) `\