Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8107
SECOND DIVISION Docket No.
7936
2-WM-CM-'
79
The Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( System Federation No.
4,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Western Maryland Railway Company
Dispute: Claim of Employes:
1. That under the controlling Agreement, the provisions of the
December 4,
1975
Agreement and Rule
9&
of the controlling Agreement
was violated on March 28,
1977,
when the Carrier failed to call
the assigned wrecking crew at Port Covington, Baltimore, Maryland
on the Western P,,Taryland Railroad for a derailment at Greenmount,
Maryland, and in their place called a wreck outfit off the
Baltimore and Ohio Railroad.
2. That accordingly the Carrier be ordered to compensate Carmen
F. J. Lavicka,
ri.
`'1'.
~-;asmus, R. P. Jester, rI. G. T:"acDonald, G.
Jenning-, and C. J. Leiberto for eight
(8)
hours' pay at time and
one-half rate and eight
(8)
hours' pay at double time rate. Carmen
F. J. Lavicka, H. T. Was:nas, R. P. Jester, H. G. :."acDonald,
G. W. Jenning, and C. J. Leiberto hereinafter referred to
8s
the
Claimants, were employed by the 'r7estern Maryland Railway Company,
hereinafter referred to as the Carrier at Fort Covington, Baltimore,
Maryland.
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.
This is a companion case to Award
8106,
involving the same derailment
situation which led to the claim filed in Award
8106.
The cases differ in
the respect that the independent contractor called in Award
8106
could not
perform the rerailing work on the locomotives -involved. Carrier, therefore,
called on a Baltimore and Ohio 250 ton wrecr_ing crane with a long boom and
crew to assist the Carrier's 1-Tagerstown, :,1aryland 2;:0 ton wrecking crew and
crew to rerail the locomotives.
Form 1 Award No. 8107
Page 2 Docket No. 7936
2-WM-CM-' 79
Petitioner asserts that Carrier's Port Covington wreck outfit utilizes
a 160-ton crane "which is more than sufficient to handle one end of any
diesel locomotive ever built", and that it had been used to perform such
work "in prior years".
Carrier asserts that a long boom crane with a greater capacity than
the 160-ton capacity short boom crane at Port Covington was required to
assist the 250 ton Hagerstown wreck cram:, and, therefore, it called upon _
the B&0 Baltimore crane and crew, as a contractor and so reiniaursed B&0.
The record indicates that Carrier first called the fiagersto.M outfit
and crew at 11:00 p.m., March 21,
1977
and they left the derailment site
at 2:15 a.m., March 24,
1977.
The B&O crew was called for service at
3:30 a.m.,, March 23,
1977
and left Gree=-ount at 12:18 a. m., march 24,
1977. The Hagerstown crane and crew worked "in conjunction with" the B&0
crane and crew to rerail. the locomotives.
Petitioner has not successfully controverted Carrier's statements as
to the need for a long-boom crane with capacity to match the Hagerstown
250-ton derrick.
The arguments azd contentions of both parties in the instant case are
the same as those advanced in Award 810
B&0 functioned in the instant case as an independent contractor.
Article VII of the December 4,
1975
agreement is applicable. We shall deny
the claim for the reasons outlined in Aimrd 8106.
A W A R D
Claim denied.
NATIONAL RAIIROAD ADJUSTFCEINT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
l
By _.°'~2.C'.-~.-r't~.,.---',s, ---
-Rds,4marie Brasch - Administrative Assistant
Dated al Chicago, Illinois, this 27th day of Septemper, 1979.
RECEIVED
OCT 181979
LABOR MEMBERS' DISSENT TO AWARDS NO. 8106 & 8107
,r. W. GOHMANN
DOCKETS 7935 AND 7936
The record is sufficiently clear that no members of the
Carrier's Wrecking crew worked with the contractor at the wreck
scene giving rise to these disputes. It is correct that Carrier's
wrecking crew was called but it worked only with Carrier's wrecking
outfit at the opposite end of the derailment.
Article VII of the National Agreement dated December 4, 1975
reads in pertinent part:
". . .a
sufficient number of the Carrier's assigned
wrecking crew, if reasonably accessible to the
wreck, will be called(with or without the Carrier's
wrecking equipment and its operators) to work with,
the contractor . . ."
(Emphasis is added)
The rule prohibits the Carrier from utilizing the services of a
contractor's ground forces when the Carrier's wreck crew is
reasonably accessible and available, as was the Carrier's wreck
crew in the instant case. Since the Carrier's wreck crew was
reasonably accessible and available, they should have been called
"to work with the contractor", as provided for under the rule.
Webster's New Collegiate Dictionary defines "with", in general,
as denoting "a relation of proximity, contiguity, or association .
. . . Association in respect of accompaniment- hence, alongside
of; in the company; "and when applied to the terms of Article VII,
provides that Carrier's wrecking crew will work with the contractor
(alongside of; in the company ~of), not at the other end of the
derailment. Clearly then, when Carrier called outside contractors
and utilized them to work at one end of the derailment, while
Carrier's wrecking crew and equipment worked at the other end of
the derailment, the Agreement was violated.
Without a doubt, the fact that Carrier did call its own
wrecking crew and equipment to work at the derailment, did not
relieve them of their obligation to call additional groundmen
to work with the contractor, as provided for under the rule.
No wrecking crew members were called to work with the contractor.
Also, operators denotes more than one. To hold that Carrier can
relieve its obligation to its employes by calling out the members of
one crew which does not work with the contractor, does irreparable
damage to an agreement negotiated in good faith which has for its
purpose the use of Carrier's ground forces with the contractor
when performing wrecking service if they are readily accessible..
The majority failed to grasp the true language of the agreement and issued an erroneous award which requires this dissent.
hn Clementi - Labor Member
- 2 - LABOR MEMBERS' DISSENT TO
AWARD NOS.
8106 & 8107
DOCKETS 7935 AND
7936