Form 1
NATIONAL RAILROAD ADJLJSTi·TNT BOARD Award :To. 8090
 SECOND DIVISION Dock t :;o. 781+-T
 2-BNI-C~-' 79



Parties to Dispute: ( (Carmen)

 Dispute: Claim of Employes:
( Burlington Northern Inc.

 1. That the Burlington Northern Inc. violated the Scope Rule and Rule




2. That accordingly, the Burlington D?orthern be ordered to additionally



Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
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.

Four cars were derailed at Carrier's Denver Yard. Since no wrecker is maintained at the Yard, Carrier called several local crane companies, without success, It finally secured the services of a Union Pacific Railroad crane, which was accompanied by four graundrlen. Carrier assigned three Carmen to the retailing work, each of wham, Petitioner alleges, "worked with the Union Pacific men in clearing up this wreck".

 Petitioner argues in substance, that Carrier "augmented these three (3) Carmen with four (~) Carmen from the Union Pacific Railroad", thus using 7 Carmen. Hence, it caaims, Carrier should have used seven Burlington Northern Carmen from its wrecking and re!railing list.

 Petitioner further assert; that the derailment created no emergency situation at the Yard, inasmuch as the Yard has 40 tracks.
 Form 1 Award No. 8090
 Page 2 Docket No. 7814-T
 2-BNI-CM-'79



Petitioner relies on sustaining Award 6447 (Shapiro), in which the Board stated, with respect to Rule 88(c), identical in language to Rule 86(b):

Carrier contends, on the other hand, that it complied with Rule 86(b) by having called "sufficient" Burlington 'Northern carmen, based on past practice of calling two or three carmen, "especially when only one to four cars are involved". It adds: "The Union Pacific wrecking crew accompanied their crane but this does not riean that additional BN carmen would have been called if they had not". -.Furthermore, Carrier insists: "That Union Pacific employees accompanied their crane pro-,,rides no support for this claim, because they did not perform work which the claimants would have performed".

 Carrier also defends its action on the ground that retailing a car within yard limits is not exclusively carmen's work, citing Awards 5812 (Stark) acid 6454 (Bergman).

 Carrier also claims it wa:> faced with an emergency, which required it to use the UP crane to retail the cars, citing Award 7074 (ITorris).

 Both the Union Pacific Ra:Llroad Co. and the UP Carmen were given due notice as interested Third Parties, but submitted no statement.

 At each step of the handling of the claim on the property, Petitioner asserted that the four UP grow:amen worked with the tree BN carmen in the retailing. The Local Chairman's original claim stated that Carrier:




Foam 1 Award No. 8090
 page 3 Docket No. 781+--T
 2-BNI-CM-'79
 "contacted the Union Pacific Railroad and their crane was
 dispatched together u2th their wrecking crew. Three (3)
 people from Burlington Northern retailing list were also
 called for the derailment.
 Due to the fact sufficient Burlington Northern carmen were
 called to this derailment to perform work necessary to
 comply with Rule 86, Para. (B), your claim is not valid
 and is respectfully declined."

 Petitioner, in progressing; the claim to Carrier's top official authorized to handle such matters stated:

Petitioner acknowledges that had Carrier employed the UP Wrecker Unit with only the driver and operator, but without the additional four UP groundmen, Carrier would have complied with "past practice" at the Denver Yard. But since the four UP grouncmen "worked side by side with the three Burlington iTorthern carmen inside the yard lirzits of the Burlington's ... Yard retailing four cars", the Agreement was violated arid Carrier could not rely upon past practice.

 In support of its position Petitioner cites Second Division Award No. 5810 (Stark) which involved Chicago and Eastern Illinois Railroad v. Carmen. The Carrier in that case took the following position:



In sustaining the Carrier's position the Board issued the following denial Award:
 Form 1 Award No. 8090
 Page 4 Docket No. 781+-T
 2-BNI-CM-'79
 "In a line of decisions involving this organization and
 various carriers, the Board has consistently held that
 the wrecking crew rule (Rule 101 here) applies to wrecks
 and derailments on carrier's property but does not
 apply when the wrecker is loaned to another carrier for
 retailing work on its property, .,."



Carrier, in its Rebuttal Statement, asserts that Award 6257 is relevant to the instant case, notwithstanding that it involved a wreck outside yard limits, "in that it points out that the carrier had the right to use other than the claimants, .provided only that it offered a reasonable explanation for doing so. In this case, Carrier has shown that it used the Union Pacific's crane because it was the only one available. This is certainly a reasonable explanation for doing so, and therefore Award 6257 is authority for denial of this claim,"

 Carrier's comments quoted supra are not on point. Petitioner has raised no objection to, dot doE!s the claim apply to Carrier's use of the UP crane, its driver and its operator. The claim is based on the work allegedly performed by the four UP groun~-nen, which allegedly deprived Carrier's carmen of work opportunity under the provisions of Rule 86(b).

 Carrier has asserted that no UP employee performed work which the Claimants would have performed, because "sufficient" BPI Carmen were called to perform the work. Carrier did not state that the UP groundmen performed no work -- in which case this Board would have been confronted with conflicting statements by Petitioner and Carrier. Instead, Carrier consistently used the phrase, "no UP employee performed work which the claimants would have performed"; or, as stated in its Rebuttal, "the Union Pacific employees did not perform work ;which otherwise would have been performed by the claimants, because the same nur:ber of Burlington Northern carmen were called to perform the work as were called in similar situations in the past". This language, in our judgment,, does not constitute a denial of Petitioner's claims that its members "worked with the Union Pacific men in clearing up this wreck"; or that the four UP groundmen "worked side by side with the three Burlington Northern carmen ... retailing four cars".
 Form 1 Award No. 8080
 Page 5 Docket No. 781'+-T
 2-BNI-CM-' 79

 While we are disinclined and reluctant to engage in conjecture, we submit that Carrier's response to the claim leaves the clear reference that the UP groundmen did perform some work on the BN property at the time of the retailing operation at the BN Denver Yard. To assert, as Carrier did, that the UP employees "did not perform work which othenrise zrould have been performed by the clair.:ants, , .. " is tantamount to stating that UP employees, employees of a foreign carrier, ,p~rfol^mecl work on BN property. (Underlining added). Carrier at no titre explicitly denied Petitioner's contention that UP groundmen "worked side by side" with Carrier's groundmen in the retailing.

 Petitioner's claim does not apply to Carrier's use of the UP crane, its driver and operator, but on Carrier's use of the four UP groundmen. Hence, Carrier's statements in defense of its action, quoted supra, must refer to the four UP groundmen.

 Carrier, as previously noted, maintains that in the past, for derailments of similar size, three carmen have been called as was done in the instant case. Carrier therefore maintains that "sur"ficient cam. en" were called to perform the work, in compliance with Rule 86(b), and in conformity with past practice.

 Second Division Award 7214 (Bitter) between the same parties involved claim that employees other than Carmen were assigned to perform and did perform retailing work within yard limits. A single freight car was derailed. No wrecker was called. The Board sustained the claim in behalf of four carruen basing its decision on Award x+770 (Johnson), on the former Great Northern (later merged into the BN), which stated, in part:



Award 7214, on this property at least, confirmed and supported prior Awards that wrecking service within yard limits is carmen's work.

 Award 5812 (Stark) and 64`i4 (Bergman) cited by Carrier denied claims by Carmen to the right to operate a "crane and lift truck", in the one case and a "crane or wrecking derrick" in the other. The case before us does not involve claims to operate such equipment, but rather that the Carrier used groundmen from a foreign carrier.

 The Carrier Member, subsequent to the Panel Hearing, has called our attention to recent Second Division Award 8009 (Van Wart) involving a different Carrier, in which the Board denied a claim involving a rule similar in major respects to Rule 86(b). In the situation covered by Award
 Form 1 Award No. 8090
 Page 6 Docket No. 781+-T
 2-BNI-CM-`79

 8009, two diesel units were derailed in the Carrier's switching yard. One of the diesel units was retailed by the Carrier's own forces and the other by a contractor using his three yardmen plus the two Carrier careen who retailed the first diesel unit. Theme, as here, the claim was filed on the ground that the Carrier used the contractor's groundmen without:, calling additional caxznen from its own forces, since it was claimed, the Carrier's employees had the right to perform the ground work.





Were the record in the instant case "silent as to the work role played" by the UP groundmen, we would, per force, agree with the Board's decision in Award 8009 and deny the instant claim. But as we have previously indicated, Petitioner's assertion that U? groun men "worked side b y side" with Carrier's Carmen in the rerailirig remained uncontroverted; Carrier's assertions that the UP employees "did not perfo;:~n work which the Clainniants would have performed" do not, in our judgment, refute Petitioner's repeated statements during the progress of the claim on the prc5perty that the four UP groundmen worked with the three BN Carmen in the rera'__ling. In conformity with the Board's wellestablished principle that material statements made by one party and not denied by the other may b e accepted as established fact, we hold that Petitioner has met the burden of proof.

 In conformity with the Board's decision in Award 6257 (Shapiro) that a Carrier must "offer a reasonable explanation for its need to utilize other employees ,..", Carrier in the instant case must offer an explanation for its decision to use forces other than its own employees when the applicable Agreement, as in this case, expressly provides that "For wrecks and derailments within the yard limits, sufficient cax^nen will be called to perform the work". Carrier's "explanation" related to its use of the UP equipment and its operators, not to the four UP ground-men, which is the issue before us. Accordingly, we will sustain the claim.

 Claimants were on duty on the day in question, their assigned hours being 7:00 AM to 3:00 PM. We direct that the four Claimants be compensated only for such period beyond the end of their tour of duty (3:00 PTM) and the time, based on Carrier's records (which may be verified by Petitioner) that the retailing eras completed and the UP employees were released from duty. The compensation for such time subsequent to 3:00 PM shall be at the rate of time and one-half.
 Form 1 Award No. 8090
 Page 7 Docket No. 7814-T
 2-BNI-CM-f79




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 Byte,.~,~.-~r.-~c..~_~,~...~_....~.~.~
 '.-~O~emarie Branch - Administrative Assistant

 Dated at Chicago, Illinois, this 27th day of September, 1979,