Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7214
SECOND DIVISION Docket No. 7042-T
2 -BNI -CM-' 77
The Second Division consisted of the regular members and in
addition Referee Gene T. Ritter 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 Carrier violated the current Agreement, particularly
Rules 86 and 26 of the Controlling Agreement, when on February 7,
1974, it improperly allowed other than Carmen, i.e., section foreman,
section hands and supervisors, to rerail B,It. 607101, which was
on what is known as "Ice House Track" on the east end of the
classification yard at St. Cloud, Minnesota. This derailment is
in the yard limit.
2. That accordingly, the Carrier be ordered to additionally compensate
Carmen S. Kirchner, A. Brandl, A. Theisen and G. Euteneur in the
amount of four (4) hours at the prevailing straight time rate for
February 7, 1974.
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.
On claim date, a freight car became derailed within yard limits at the
St. Cloud, Minnesota yard. Employees other than Carmen were assigned to
perform and did perform re-railing work. The Organization is dependent upon
Rule 86 (B) the pertinent part of which is as follows:
"(B) **** for wrecks or derailments within the yard limits,
sufficient Carmen will be called to perform the work."
The Organization also depends upon Award Nos. 7124, 4770, 6015 and 1442 in
support of this Claim. Carrier contends that Carmen do not have exclusive
right to re-rail cars when a wrecker is not called; that an emergency existed
and, therefore, Carrier had the right to clear its track with any means
possible. Carrier also contends that there is no basis for damages if the
violation is sustained.
Form 1
page 2
Award No. 7214
Docket No. 7042-T
2 -BNI -CM-' 77
It is the opinion of this Board that Award No. 4770 decided the issue
involved in this dispute when this Board stated, in part:
"If the derailment had been outside yard limits, the Superior
Wrecking Crew should under Rule 88 have been called. But
since it was within yard limits and the wrecker was not used,
'sufficient Carmen' with seniority at the point should have
been called.
The work of clearing the derailed cars from the tracks was
wrecking service, and the use of maintenance of way employees
in lieu of Carmen was improper."
Also, Second Division Award Nos. 4317, 4332, 3405, 5034 and 7107
upholds the theory that when Carrier violates the Agreement, there must be
some provision to promote compliance.
Therefore, this Claim will be sustained.
A W A R D
Claim sustained.
Attest; Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By____,
;
Ros~barie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 25th day of January, 1977.