Form 1 NATIONAL RAILROAD ADJUSTNEIVT 30ARD Award No. 7085
SECOND DIVISION Docket No. 6877-T
2-BNI-CM-'76
The Second Division consisted of the regular members and in
addition Referee David P. Twomey when award was rendered.
( System Federation No. 7, Railway Employes'
( Department., A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Burlington Northern Inc.
Dispute: Claim of Employes:
1. That the Burlington-Northern, Incorporated, violated Rules 26,
82, 83 and 86 of the Controlling Agreement in effect on the
Burlington-Northern, Incorporated, when they used other than the
regular assigned wrecking derrick operator to retail derailed
cars at a derailment in the Allouez yard January 14, 197+:
2. That, accordingly, the Burlington-Northern, Inc., be ordered to
additionally compensate regularly assigned Superior, Wisconsin
wrecking engineer J. Karling in the amoung of eight (8) hours at
the pro rata (1) rate for his class fox January 14, 197+.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Claimant, Carman J. Karling is the regularly assigned wrecking
engineer for the Superior Wisconsin wrecking crew. A derailment occurred
in the Carrier's Allouez yard, and on January 14, 197+, the Carrier assigned
three on duty taxmen to clear the derailment. These three carmen were
also regularly assigned members of the wrecking crew based at Superior, with
its 150-ton derrick and outfit, and a regular crew of six including four
ground crew members, a wrecker foreman and the wrecker engineer. In the
instant case the three carmen were assigned as carmen and not as members of
the wrecking crew. The Carrier utilized a 30-ton Maintenance of Way Crane,
X-1859, to assist in clearing the derailment. The operator of the crane was
represented by the BMWE.
Foam 1
Page 2_
Award No. 7085
Docket No. 6877-T
2-BNI-CM-'76
The Carmen's Organization contends that the Carrier in effect recruited
a wrecking engineer from outside the Cannen'.s craft, where the BMWE crane
operator was utilized to operate the M of W Crane. The Organization in
effect considers the X-1859 crane to be a derrick, and asserts that a
derrick was used in picking up the Allauez yard derailment, (Employes'
Submission pp.
4,
10, 11). We find to the contrary on this contention.
X-1859 is a 30-ton crane, it is not a 150-ton derrick, and is not a wrecking
derrick.
The Organization contends that the Carrier did use the ground crew
members of the Superior wrecking crew but did not use the engineer (Employes'
Submission p. 3)· We find that the Carrier did not use the "ground crew".
The Carrier used three on duty carmen as it was entitled to do under Rule
86(b) for a derailment within yard limits. These men, while they were the
regularly assigned members of the wrecking crew, were not used as such, but
were assigned as on duty taxmen. No rule of the Agreement restricts the
Carrier to selecting only the i50-ton wrecking derrick as equipment to be
used in the case of derailments within yard limits. We find that it was the
Carrier's managerial prerogative to assign the appropriate equipment to
assist the carmen in the retailing work of the cars
IM
the instant claim.
There is conflict in the Awards of this Division as to whether ox not other
than a taxman crane operator can be utilized in a situation such as we have
before us. We do not reach a decision on the issue. For we find that the
Organization has not sustained its burden of proof that Claimant in this
instant case was qualified to operate crane X-1859. It is clear beyond
question that the Organization is required to carry its burden of proof on
all of the essential elements of its ease. The Organization's treatment of
the issue of the Claimant's qualifications to operate crane X-1859 on page
11 of its Submission in no way can be interpreted as sufficient evidence to
support the necessary finding that the Claimant was qualified to operate
crane X-1859. Nor can this Board draw an inference that because an individual
is well qualified to operate a 150-ton derrick, that therefore the individual
can operate a 30-ton crane. The record disclosed that crane X-1859 is a
very different piece of equipment than the 150-ton derrick.
We will deny the claim.
Claim denied.
A W A R D
Attest: Executive Secretary
National Railroad Adjtvtment Board
By ~.
osemarie B a ch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of Julys 1976.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division