Form 1

Parties to Dispute:

Dispute:

Claim of Employes:

NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8235
SECOND DIVISION Docket No. 8091
2-S00-CM-'$0

The Second Division consisted of the regzlar members and in addition Referee George S. Roukis when award was rendered.

System Federation No. 7, Railway Employes'
Department, A. F. of L. - C. I. 0.
(Carmen)

( Soo Line Railroad Company

1. The Soo Line R. R. violated Rules 28, 94, 97 and 98 of controlling

agreement when on March 28 and March 29, 1977 they secured the services

of an outside contractor consisting of two (2) operators and equipment

from Avon, Minnesota to rerail cars due to deraiL.ent of train -,;o. 9'+;2

on a siding at Paynesville, Minnesota on March 25, 1977.

2. That accordingly the Soo Line R.R. Co. be ordered to compensate the

Shoreham Shops, Minnesota Wrecking Crew members, namely:

Carmen

William Vados
David Terry
Ray Korzenowski
Allen Wilnot
William Fish
Douglas Granville
Delmar Parvey

Wrecking Engineer
Wrecking Engineer
Ground Crew
Ground Crew
Ground Crew
Ground Crew
Cook

in the amount of sixteen (16) hours at the Carmens time and one half rate of pay each.

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.

The threshold question raised in this dispute is whether or not the precise conditions surrounding the derailment at Paynesville, Minnesota on March 25, 1977 and immediately thereafter posed an indisputable emergency that warranted the use of an outside contractor.
Form 1 Award No. 8235
Page 2 - Docket No. 8091
2-soo-CM 1 So

Claimants argue that Carrier violated Agreement Rules 28, 94, 97, and 98 respectively when outside forces were retained to perform this work, while Carrier contends that the nature and the extent of the derailment coupled with the impracticallity of rebuilding the track before being able to position Carrier equipment at the derailment site justified its action. .

Our review of the record, particularly the data depicting the magnitude of the derailment, does not support petitioners assertion that it was feasible to use the Shoreham wrecker. On the contrary, we find that given the unmistakable eme^gency that existed and Carrier's non ownership of mobile equipment, that Carrier acted responsibly and consistent with its managerial prerogatives as defined in our predecesser A,cardso (See, for example, Second Division Awards 4190, 6177, 6602, 6757 and 7979.)

In Award 7979, which is on all fours with this dispute and involving the same parties and the same type of issue, we held that Carrier's determination to use an outside contractor was plainly permissible under the circumstances and denied the claim. We find this ruling directly applicable to the fact specifics herein and thus we are compelled to deny this claim. An emergency was present that required Carrier to use an outside contractor to clear and revitalize promptly the deraiax:ent site and it was neither a contract violation nor an abuse of managerial discretion.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTi1ENT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjustment Board

0

By l- '--sir,.-~:c:

semarie Brasch - Administrative Assistant

Datedlat Chicago, Illinois, this 16th day of January 1980.