Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award
No-7781
SECOND DIVISION Docket No.
7598
2-C&o-CM-'79
The Second Division consisted of the regular members and in
addition Referee
George S. Roukis when award was rendered.
( System Federation
No. 4,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That the controlling agreement was violated and the Carrier was
arbitrary, capricious, and discriminatory and an abuse of
managerial discretion when the Chesapeake and Ohio Railway Company
used Hulcher Emergency Railroad Service Company an outside
contractor to clean up derailment at Ensel Yards (within yard
limits) Lansing, Michigan, on November
27,
and November
28, 1975.
2.
That accordingly the Chesapeake and Ohio Railway Company compensate
the following nine
(9)
regular assigned wrecking crew members fox
seven
(7)
hours and ten (10) minutes at time and one half
(12)
or
ten (10) hours and forty five
(45)
minutes plus one (1) hour
prep time (straight time rate) for a total of eleven (11) hours
and forty five
(45)
minutes for each man.
Working No. & Name Title & Rate of Pay per Hour Total
1. 2444947-
W. Ritzenhein- Wrecknastex-
$5.78 $67.92
2. 2+80762-
L. Klocke -Engineer - 5
.72 67.21
3. 2444877-
L. Olewinski - Fireman - 5
.66 66.51
4. 21+x+4903-
L. Potter -Cook - 5
.66 66.51
5. 2445079-
M. Day - Groundman - 5
.72 67.21
6. 2444726-
G. Dawson - Groundman - 5
.66 66.51
7. 2444849-
P. Hodges - Groundman - 5
.66 66.51
8. 2445075-
P. Smith - Gxoundman - 5
.66 66.51
9. 2444987-
D. ziel - Gxoundman - 5
.66 66.51
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.
Foam 1 Award No.
7781
Page 2 Docket No,
7598
2.-C&O=CM-'
79
Carrier contends that it was exercising its managerial rights when it
decided to use the Hulcher Emergency Railroad Service Company to clear the
derailment within the yard limits at Ensel Yards, Lansing, Michigan. It
readily concedes the non-existence of an emergency situation, but strongly
asserts that the language of Rule
130,
Working Crews, particularly the first
sentence thereof
beginning
with the word "when" unmistakably vests management
with the discretionary authority to decide on the most expedient method of
handling derailments and adduced a litany of adjudicated cases to substantiate
its position.
Claimants, on the other hand, aver that the Board has long held that
management's discretion in using or not using wrecking crews for wrecks is
not absolute and must be justified by a compelling showing that an emergency
exists ox that its own equipment could not
do
the work.
While we recognize that no single award is squarely on point zrith the
fact specifics of this case, we do find after a careful analysis of many of
them, a common thread of decisional consistency to conclude that Carrier's
managerial prerogatives are not absolute. Similarly, we find that the work
in question does not exclusively accrue to the wrecking crews. (See for
example, Award
6322).
We agree, however, with Carrier's argunient that :it must possess the
right to determine when to use -wrecking crews, but we must note, correlatively,
that this is not an unrestrained ~:rexogative. It may be challenged. For ·
instance, we stated in Award
6257
that, "our holding in Award
4190
declared
that the determination as to the need for a wrecking crew was a matter of
management discretion and judgement but cautions that this may be successfu1:Ly
challenged :if the Carrier's action in this regard is arbitrary, capricious
discriminatory ox an abuse of managerial discretion." (See also Award
3620
Accordingly, Carrier must offer an explanation for its decision to use
forces other than the contractu:all;Y~ spec4_fied nrrecking, crews, otherwise
why incorporate such a provision in the collective bargaining agreement.
The potential fox unnecessary litigation is too great. In the instant
case, Carrier states that it was essential to use the outside contractor
since its local supervision technically determined that special off track
equipment, which it didn't .possess, was needed to cleat the derailment.
It asserts that said equipment eras not equivalent to w wreck outfit.
Claimants dispute this assessment and argue that the equipment was in
reality, bulldozers with a boom to lift the cars to retail them. It contend:;
that the Grand Rapid's Wrecking Crew could have .performed this work.
In this connection, we are mindful of our ruling in Award
6847,
where
we held that, "A~ere,rds of this Division have held that wrecking service work
belongs to the wrecking crew when a derrick ox similar equipment is used,
unless the use of a substitute for the derrick is necessitated by an
Foam 1 Award No.
7781
Page
3
Docket No.
7598
2-C&0-CM-'
79
emergency". While an emergency was not contended herein, we believe that
the equipment used was not a derrick equivalent and that Carrier met its
obligation under the Agreement.
We will deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTI~,~'Nr BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
~t~etraJ~ie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 4th day of January,
1979.
I