Form 1 NATIONAL RATLROAD
ADJUSTMENT BOARD
Award No.
8158
SECOND DIVISION
Docket No.
7551
2-WP-CM-'79
The Second Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
( System Federation No.
117,
Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Western Pacific Railroad Company
Dispute: Claim of Employes:
That a Rio Grande Railroad Co. derrick and groundcrew were used in
place of the Western Pacific Railroad Co. Elko derrick and groundcrea.
That these regularly assigned groundcrew members of the E1,.ko
derrick be paid in the amount of eleven hours each at rate of time and
one-half. They are Carmen D. E. Petersen,, J.
M.
Coggins,, and L. 0.
Headley,
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.
On April 77..,
1976,
one of Carrier's locomotives was derailed at
Marblehead, Utah, blocking the main line. Carrier called out its wrecking
crew from Elko, Nevada, with its derrick to rerail the engine. The Elko
derrick and crew were unable to rerail the engine because the derailed Yrheels
were on the east end of the unit and the Elko Derrick had no way to get
around the derailed unit to its east end where it could reach the derailed
wheels. Consequently, Carrier requested the D&RGW RR to send its derrick
from Salt Lake City to rerail the Engine. The D&RGW Derrick and crew was
called at
5:00
A.M. on April 11th and the work was completed at x+:00 P.m.
that afternoon. The Elko Derrick and crew had been released and did not
participate in the rerailing.
The organization relies on the December
4,
1975
Agreement and in
particular Article VII, which provides:
Form 1 Award No.
8158
Page 2 Docket No.
7551
2-WP-CM-'79
"Article VII - Wrecking:
1. When pursuant to rules or practices, a carrier utilizes
the equipment of a contractor (with or without forces) for
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 or 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 are called.
The number of employees assigned to the Carrier`s wrecking
crew for purpose of this rule will be the number assigned
as of the date of this agreement.
NOTE: In determining whether carrier's ground assigned
wrecking crew is reasonably accessible to the wreck, it will
be assumed that the groundmen of the wrecking crew are called
at approximately the same time as the contractor is instructed
to proceed to the work."
Carrier contends that the first phrase of Article VII must be construed to
qualify the applicability of the language; in this case Rule
115
of the
Agreement must be also considered. That language provides:
"(b) When wrecking crews are called for wrecks or derailments
outside of yard limits, the regularly assigned crew will
accompany outfit. For wrecks or derailments within the yard
limits, sufficient carmen will be called to perform the work."
Carrier's principle argument was that the provisions of the National
Agreement were not applicable to using equipment of another railroad, but
applied only to outside contractors - outside of the industry. In this case,
Carrier argues, the work in question was not performed by outside contractors
but by Carmen covered by the same National Agreement, even though employed
by a different Carrier. Further, Carrier urges, it had no right to require
or assign its employees to the use of D&RGGT equipment. On the other hand,
Petitioner cites several awards of SBA
570
(Awards 61 and
62).
The Organization
claims that Carrier should have called its crew, under the Natiomi1 Agreement,
with the contractor's (in this instance the D&RGW) outfit.
Unfortunately, the intent of the parties in the drafting of Article VII
is not at all clear from the record of this dispute. However, certain
previously enunciated principles of this Board are relevant in the disposition
of this dispute. First, it is well established that when a derailment
occurs outside of yard limits, as herein, (under~the provisions of Rules
such as
115
supra) and the services of a wrecker are not required, the wrecking
crew does not have exclusive right to perform that work (see Awards
7526,
7074 and
7670
among many others). In Award
7744,
we dealt with a closely
related issue and held that there is no conflict between Article VII and
rules such as 115. In that Award, we said:
Form 1
Page 3
Award No. 8158
Docket No. 7551
2-WP-CM-'79
"The former (referring to Article VII) 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'. Rule 120 is not superceded by Article VII, Section
1. To accept the organization's position would be to give a new
interpretation to Rule 120, Since the parties have not disturbed
Rule 720, the Board has no reason to change its interpretation
of such rule,"
It also must b e noted, on a factual basis, that the members of the Elko
Wrecking Crew were located 205 miles from the site of the wreck and hence
Carrier found that they were not "reasonably accessible".
Based on the reasoning expressed in Award 7744, we find that the provisions
of Rule 115 must still. be considered in this dispute and that the work in
question was not exclusively reserved to Claimants herein. That fact plus
the relative inaccessibility of the Elko Crew persuade us that the Claim does
not have merit. It must be made clear, however, that we are making no
judgment with respect to whether carmen from another Carrier must be
considered to be in the same posture as employes of an outside contractor.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTl'.ENT BOARD
By Order of Second Division
$ semarie Brasch - Administrative Assistant
Dated t Chicago, Illinois, this 14th day of November,
1979.