Form 1 NATIO;JAL RATI.Ii0.kD ALO?t7STI~ILT1'T BOARD Award No. 703
SECOiuD DI'v~ ISION Docket 1170. 7116
2-T&P-CM-'!8

The Second Division consisted of the regular members and in addition Referee Robert G. i^Ti1J_iants when award was rendered.

( System Federation No. 121, Railway FAployes'

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

Parties to Dispute: (Carmen)

_ Texas and Pacific Railway Company

Dispute: Claim of Fmblos es:

1. That tire Carrier improperly used employes of a private company and their equipment to assist, ca amen in clearing up derailment of T&P 820056 art August 20, 1974, vr-i_thir. yard limits.

2. That accordingly, the Carrier ire orc'ared to additionally

compensate Carman J. W. Boyd in the amount of three (3) hours at

the time and one-half rate of pa,y.

Finding s

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

The carrier or carriers. and the emp'!.oye or e::rployes involved in this dispute are respectively carrier and cntoloye within the r.>eannof tire Rai.h:ay Labor Act as approved. June 21., 1934.

This Division of the Adjustment board has jurisdiction over the diLrrate involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The threshold question in this case is whether the Memorandum of Understanding of December 13, 19+1_ remains 7.n force and effect. This memorandum was not included among the Y:i.~nCrO'US memorandums printed with tli,,-~ agreaDetlt. The Carrier has not offered any additional evidence to show the December lath me:no'randu:?Y was cancelled. The Organization cites Rule 101(b) to support its contention that this memorandum remains in force. fiale 101 (b) provides that:

"Any amiss iarr herein of ac;ruc:v:Yats or agreed to understandings i·;1;:;.ch have not been superceded or cancelled w5.1.1 not serve to cancel or affect the application of such c.rtrw tte.d. ,>.f;i'eem·,n'ts ox under standings. ..rr-, cr,ro:~> a'r omission;; in the reproduction of 1':._vj;,:Lona.:L gf°c er~nLntu or -:io,,aorand-LLa agrer_ DueAs will not change the original agreement.

Form 1 Award No. 7623
Page 2 Docket No. 7116
2-T&P-CM-' 78

Under this rule the party contending that a memorandum is cancelled or

supefceded must .produce evidence to that effect. The mere assertion that
the memorandum was not included in the agreement does not show such a
cancellation. If it did, Rule 101(b ) would be rendered .ineffective in
preserving omitted memorandums.

The basic issue in this case 9_s whether the Carrier violated the December 13, 191+1 memorandum when it used an outside contractor's crane
and operator to retail T & P 820056 within yard limits on August 20, 197+.
This memorandum provides, in part:

"... In case of derailments within yard limits, at points where cax~;_en are employed, if yard. forces can retail or correct the condition, they may do so.

If yard, forces are unable to correct the condition and it becomes necessary to use other forces, a, sufficient number of Carmen and Carmen Helrexs or? duty may be used, if available, and if not a\railable, sufficient Carmen and helpers will. be called."

In this case the Carrier called two Carmen to re pa:i_r track and retail a car using re-railing bloc?Ls and s,,-itch unit. These attempts were unsuccessful, so the Carrier em pl oyed_ an outside contractor to use its mobile crane and operator to perform tlui.s work. There was no evidence that the Claimant was capable of performing the work done by the outside contractor.

The December 139 191 ?nc::r:ofandwn does not prescribe the method o:r equipment that mast be used. in case of c'tezwailn-ents. It merely requires that Carmen will be used if yard forces cannot correct the derailment within yard limits. In this case carmen were used to perform the work that was within their capab:i.1i'ties. The Carrier still retained the prerogative to determine the ec;uiprre:nt to be used for correcting the condition. If carmen 1,ad been capable of o'c:e:ratin:such eauip_ncnv and yard forces were unavailable or unable to pe.riorn the --rorl7, then carmen would be entitled to sash work within, yard limits. The Claimant, hojvrever, -vas not in such a position. The claim therefore must be denied.

A W A R D

Claim denied.

NATIONAL RAILROAD 1LDJIJCTP.2~3T BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

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l<ose~rc~,rie ~>rv~:'ti -- i~cianirt:i;si;s~,z't:~.ve t^:~siu~;;:.rz'~

Dateat Chicago, Illinois, t?n s 31st cl:1-:y of uulY, 1978.