C:\AWARDS\OUT\2-08093.htm

Form 1 NATIONAL RAILROAD ADJUSTPET1T BOARD Award No. 8093 SECOND DIVISION Docket No. 7861-T 2-NOPs-CM-'79

The Second Division consisted of the regular members and in addition Referee Bernard Cushman when award was rendered.

( System :Federation '.,,,To.

99,

Railway Employes'

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

Parties to Dispute: ( (Carmen)

(

( New Orleans Public Belt Railroad

Dispute: Claim of Employes:

1. That the New Orleans Public Belt Railroad violated the controlling agreement when the Superintendent of Roadway Department assigned a roadway welder to perform Carman's work in removing the brake rigging from EJ&z

83094

at Cotton Warehouse yard on February 18,

1977.

2. That accordingly, the 'New Orleans Public Belt Railroad be ordered

to additionally canpEMsate Carman

Findorff in the a.~rount of

four (1!-) hours' pay E.t the tame and one-half rate for said violation.

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 Railwayr Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction overt he dispute involved herein.

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

By letter dated August 17, 1978, the Board notified the Brotherhood of Maintenance of Way employees of the existence of this dispute and furnished that Organization with a copy of the E,rployee's and the Carrier's submissions. The Board's letter stated that if the B=:ATE desired to make a response that it should do so within thirty (30) days of the Board's letter. ITo response was received from the BPITE. On February 18, 1977, car Mars 83694 was derailed at the lower end of Carrier's Cotton Warehouse ya-d. The Carrier assigned a Road Department Welder to burn and remove the brake rig i ng from car EJU 8369!+. The Organization claims that the Carrier violated Rules 66 and 74 of the Agreement dated january 1, 1976, by so doing. The Organization claims that the work performed eras Carman's work. Form 1 Award No. 8093
Page 2 Docket No. 7861-T
2-NOPB-CM-' 79
Rule 66 provides:

"Carmen's work shall cn nsist of building, maintaining,

dismantling (except ;x,11-wood freight-train cars), painting,

upholstering and ins :_oectir.g all passenger and freight cars,

both wood and steel, planing mill, cabinet and bench carpenter

work, pattern and fl;~sh malting and all other carpenter work in

shops and yards, except work generally recognized. as Bridge and

Building Department work; ca r-:en's

work

in building and repairing

motor cars, lever cars, hand cars and station trucks; building,

repairing, and removing and applying wooden locomotive cabs,

pilots, pilot beams, running boards, foot and headlight boards;

tender frees and tracks, pipe and inspection work in connection

with air brake equipment on freight cars; applying patented

metal roofing, operating punches and shears, doing shaping and

forming; work done with hand forgers and heating torches in

connection with Carr-ea's z;orh; ;.axuting, varnishing, surfacing,

decoratin;, lettering, cutting of stencils and removing paint

(not including use of sandblast machine or removing vats); all

other work generally reco nized as painters' wor:1 under the

supervision of the Locomotive and Car Departments, except the

application of blacc:ig

to fire and smoke boxes of locomotives in engine houses; joint car inspectors, car inspectors, safety appliance and train car repairers; o,,r-acetylene, the=ft and electric welding on work generally recognized as carments work; and all other work generally recognized as carmen's work.':

Rule 74 provides

"Carmen will be sent to inspect and repair cars on line of road or away from shops. Helpers may be assigned to held catmen when necessary in the performance of this work.

It is also understood, in event of work away from shop, one (1) carman or one (1) caiman and one (1) apprentice or two (2) carmen and one (1) apprentice, may be sent according to the discretion of Super_'_ntendent, Car Department."

During the handling of this case on the property and before this Board, the Carrier asserted that the derailment constituted an emergency and that under the wide latitude nor-nal1y given Carriers in the application of Scope Rules in emergency situations the use by the Carrier of a Roadway Department Welder was proper. See Second Division Award 4826 (Johnson) and Second Division Award 557'' (Ii ves ).

The Carrier

out t'.zat its claim of emergency was never challenged

by the Organ izatic:.~ the handling of the dispute on the property. Under such circumstances, it would appear that it was not appropriate for the Organization to raise such a defense. Generally speaking, issues, arguments and defenses must be presented on the property and may not be presented for Form 1 Page 3

Award No. 8093 Docket No. 7861-T
2-NOPB-CM-' 79 the first tine at the Board. See Third Division Award 20040 (Sickles); Third Division Award 10789 (Ray); Third Division Award 18656 (Devine). Moreover, derailment prima _fac_ie presents an emergency situation. Under all the circumstances, the Board is of the view that the claim must be denied. A . W A R D Claim denied. Attest: Executive Secretary National Railroad Adjustment Board

NATIONAL RAILROAD ADJUSTP= BOARD

By Order of Second Division

-

:By iosemarie Brasch - nua.liriistrative Assistant DateJat Chicago., Illinois> this 27th day of September, 1979.