Form 1 NATIONAL RAIIROAD ADJUSTAZENT BOARD Award No. 7743+
 SECOND DIVISION Docket No. 7610
 2-MP-CM-'78



Parties to Dispute: ( (Carmen)


Dispute: Claim of Employes:








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 ox 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.

On April 14, 1976, two diesel locomotives derailed while performing work on an industrial lead within the yard limits of E1 Dorado, Arkansas. One of the units was retailed using retailers, with the services of Carmen employed at El Dorado. Fox the other diesel unit, the Carrier determined that heavy equip;nent would be required and called in the services of an outside contractor which brought its own equipment by highway to the site. Drivers of the outside contractor assisted in the rerailirig work. There is no wrecking equipment or wrecking crew headquartered at E1 Dorado.
 Foam 1 Page 2
follows:
Award No. 7744
 Docket No. 7610
 2-MP-CM-'78

 Under Article VII, Section 1, and the NOTE to Section 1 of Mediation Agreement, Case A-9699 of December 5, 1975, the Organization claims that -at a minimum --gxoundmen of the wrecking crew stationed at North Little Rock, Arkansas, should have been surrnnoned to assist in the retailing work.

 The .provision which the Organization states is applicable reads as

 "ARTICLE, VII - WRECKING SERVICE

 1. When ,pursuant to rules ox practices, a carrier utilizes the equignent of a contractor (with ox without forces) fox the performance of wrecking service, a sufficient number of the carrier's assigned wrecking crew, if reasonably accessible to the wreck, will be called (with ox without the carrier's wrecking equipment and its operators) to work with the contractor. The contractor's ground forces will not be used, however, unless all available and reasonably accessible members of the assigned wrecking crew axe called. The numb ex of employees assigned to the carrier's wrecking crew fox purposes of this rule -rill be the number assigned as of the date of this Agreement.

It is noted by the Board that the instant dispute follows shortly after the adoption of Article VII, Section 1, of the December 4, 1975, Mediation Agreement, thus offering recently agreed upon language fox interpretation in this case.

 One of the issues in dispute is whether ox not the members of the wrecking crew from North Little Rock were "reasonably accessible" for the purpose. Since the outside contractor's force were called from a point only a relatively few miles closer than the headquarters of the North Little Rock wrecking crew, and since in both instances highway transportation was or could have been used, the Board finds that in this instance the Carrier cannot defend its position on the wrecking crew not being "reasonably accessible".

 Article VII, Section 1, clearly permits the Carrier's use of an outside contractor, but in exchange requires the use of a "sufficient number of the carrier's assigned wrecking crew". Since the Carrier's wrecking
 Form 1 Award No. 7744
 Page 3 Docket No. 7610
 2-MP-CM-'78

 equipment was not used, this would appear to mandate the use of the wrecking crew's groundmen in this instance.

 This is the clear statement of Article VII, Section 1 -- with one proviso. This is the equally clear statement that the provision applies "when pursuant to rules ox practices". Here, reference must be made to the underlying Agreement between the Organization and the Carrier which states in Rule 120;





No conclusion can be reached that Article VII, Section 1, of the 1975 Mediation Agreement is intended to obliterate Rule 120. To the contrary, Article VII clearly commences, "When pursuant to rules ox practices..."

 The derailments in this dispute were within yard limits. Of course, the derailments were outside the yard limits of the nearest wrecking crew, but if this is taken as governing, it would mean that in _any yard not having a wrecking crew, Carmen situated within such yard would be barred from the work. This is not what Rate 120 says.

 Of the marry awards dealing with this point, one of the most recent is Award No. 6+95 (McGovern), in which the applicable rule (84 E) was similar;

In Award No. 695, a derailment occurred within yard limits and a claim was made by a wrecking crew located 46 miles away when local Carmen were used, in that wvraxd., the Board held:
Form 1 Award No . 7744
 Page 4 Docket No. 7610
 . 2-MP-CM-`78

 Awards No. 1069 (Mitchell), 5051 (Johnson), and 6030 (Zumas) and others similar axe not supportive here, since these cases involve the actual use of Carrier's wrecking equipment and their operators, and the questions involved were whether ox not additional wrecking crew members were entitled to accompany the equipment. No such question applies here.

 The Board finds no conflict between Article VII, Section 1, of the 1975 Mediation Agreement and Rule 120. The former memorializes the Carrier's right to use outside wrecking services while requiring the use of wrecking crew members as specified but "pursuant to rules or practices". Ru7s 120 is not supexceded by Article VII, Section 1. To accept the Organization's position would be to give a new interpxetaltion to Rule 120. Since the parties, however, have not disturbed Rule 120, the Board has no reason to change its interpretation of such rule.




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

lie 1Z io~


      " semaxie Brasch - Administrative Assistan'c


Dated at Chicago., Illinois, this 29th day of November, 1978.
 . .. .. ~ _

 LABOR MEMBER'S DISSENT TO AWARD NO. 7744 - DOCKET NO. 7610
 In denying the claim the Majority obviously misplaced and, therefore, misconstrued the phrase found in Article VII, "when pursuant to rules and practices, a carrier utilizes the equipment of a contractor...".
 That phrase clearly refers to rules or practices under which the Carrier utilizes a contractor. The Majority in this award has in effect erroneously held that "if the carrier utilized the equipment of a contractor the work will be performed pursuant to rules and practices." That is not what Article VII states.
 The Majority adopted that theory not withstanding the fact that the Carrier never presented such argument.
 It was never alleged that Article VII of the National Agreement dated December 5, 1975 superseded Rule 120 of the Agreement. But Article VII modifies Rule 120 to specifically provide that where the equipment of a contractor is utilized a sufficient number of the Carrier's assigned wrecking crew will be called to work with the contractor, and that the contractors ground forces will not be used unless all available and reasonably accessible members of the assigned wrecking crew are called. That provision is not restricted to any geographic location or, Carrier's property.

        The majority is in. gross error and we dissent.


                              C . E . Wheeler

                              Labor Member