Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8284
 SECOND DIVISION Docket No. 8015
 2-B&0-Chi-'80



Parties to Dispute: ( (Carmen)

Dispute: Claim of Employes:











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.

The factual circumstances surrounding the instant case are not in dispute. On May 10, 1977, at approximately 10:40 AM, Cumberland train 96 with engine 1830 pulling 73 cars derailed twenty-eight (28) cars at a location west of Keyser, West Virginia and approximately two (2) miles east of Big Curve, Maryland; To clear -the derailment, Carrier on this same date, at about 12:50 PM, contacted the Hulcher Emergency Service, an independent contractor and arranged for Hulcher to provide off-track equipment necessary to perform the job. Ten (10) minutes later, at 1:Oc0 PM*, according to the Carrier, it called out the assigned wrecking crew based

 *Carrier in its correspondence stated the Grafton wrecking crew was called at 1:00 PM, while the Organization places the time at 12:00 PM.
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 at its facility in Grafton, West Virginia. Grafton is situated approximately 66.4

 miles from the site of where the derailment occurred and it took the assigned wrecking crew of six (6) members along with their tool cars a total of seven (7) hours and forty (40) minutes to arrive at the scene. The Hulcher Company along with their crew and equipment which included, twelve (72) groundmen, two (2) sidewinders, one (1) dizer, and a foreman arrived at the derailment site at about 7:15 PM on May 10, 1977. The Carrier's Granton wrecking crew arrived at the derailment site at apprtxtimately 7:40 PM, May 10, 1977, commenced work immediately and worked continuously until relieved at 7:00 PM the following evening, May 11, 1977.

 The Organization alleges, among other charges, that the Carrier violated Article VII of the December 4, 1975 National Agreement, when on date of the derailment, May 10, 1977, Carrier chose to call out the assigned wrecking crew of six (6) members based at Grafton, West Virginia rather than the assigned wrecking crew of twelve (72) members based at Cumberland, Maryland, which was situated much closer to the derailment site, Cumberland being located approximately 32.8 miles away.

 Article VII - "Wrecking Service" (National Agreement of December 4, 1975), reads as follows

 "l. When pursuant to rules or practices, a carrier utilizes the equipment of 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 rnunber of employees assigned to the carrier's wrecking crew for purposes of this rule will be the number assigned as of the date of this Agreement.

 NOTE: In determining whether the carrier's 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."

 The organization contends.the Carrier manipulated the provisions of the December 4, 1975 Agreement, specifically that of Article VII in the instant case by calling a wreck outfit from a further distance (Grafton,, West Virginia as opposed to Cumberland, Maryland), with a much smaller crew size (six member crew at Grafton as opposed to a twelve member crew at Cumberland), thereby ostensibly complying with the fulfilling the obligations set forth in the Agreement. Furthermore, the Organization believes that the language of Article VII preserves the rights of an assigned wrecking crew to be called before the contractor's ground forces can be used. In the instant case, the Organization asserts that in not calling the assigned wrecking crew at Cumberland to join with the assigned wrecking crew from Grafton, the Carrier failed to meet its obligation under Article VII by not dispatching a sufficient number of assigned wrecking crew members reasonably accessible to the derailment site. By not meeting this obligation, the Organization accuses
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 the Carrier of farming out the livelihood of the employees of the Carmen craft and class who hold regularly assigned wrecking crew positions.

 In reviewing this case, we note the high degree of similarity between the surrounding circumstances and facts here with those which prevailed in our Award No. 8106, with Referee Weiss presiding. We feel that our Award 8106 is dispositive of the several major arguments made here by the Organization with but one exception. Briefly, we continue to affirm the following findings advanced in Award 8106:







The exception we believe concerns that portion of Article VII which makes reference to "a sufficient number of the carrier's assigned wrecking crew, if reasonably accessible to the wreck, will be called ... to work with the contractor". We agree with Petitioner's observation that one of the purposes of the December 4, 1975 Agreement was to express assurance to the employees of the Carmen craft and class who hold regularly assigned wrecking crew positions that they will be entitled to perform wrecking service work under certain specified conditions and prevailing circumstances. We so identified these several conditions in Award 8106 by stating that
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 In the case at bar, the Carrier had a choice of at least two (2) assigned wrecking crews that we know of which were considered to qualify as being reasonably accessible to the wreck. Carrier exercised its prerogative and chose the smaller crew and the one based the furthest distance away from the derailment site. We might not have cast any objections to Carrier's choice of wrecking crews here no matter how dubibus such choice may appear to be to us on the surface, had it not been for the fact that the crew arranged for by Carrier and provided by Hulcher, the independent contractor, outnumbered Carrier's crew by slightly more than two (2) to one (1). Although we realize that wrecking crews-vary in size as to the mmber of employees holding regular assignments, that number to soave extent being fixed by the 1975 Agreement itself, it occurs to us that the Carrier's choice of the smaller crew at Grafton over the larger crew at Cumberland, did not comply with the spirit and intent of Article VII with regard to providing a sufficient rnunber of the carrier's assigned wrecking crew. Carrier apparently was cognizant that the smaller crew at Grafton was not of sufficient size to meet the work demands of the derailment in question since at the time, they made arrangements with the Hulcher Company not only for the off-track equipment but also for Hulcher to bring a sizable crew of twelve (12) groundmen and a foreman.

 Based on the facts presented in the record it is our opinion that, in fact, the Grafton wrecking crew of six (6) members was not sufficient to accomplish the magnitude of work created by the May 10, 1977 derailment and that Carrier was well aware of this fact at the time. Otherwise, why would Carrier have arranged with the Hulcher Company to provide such a sizable ground force? Given our previous findings in Award 8106 that a carrier is not obligated under Article VII of the December 4, 1975 Agreement to call more than one (1) assigned wrecking crew, we now additionally add that where more than one assigned wrecking crew is determined to be reasonably accessible to the wreck, all other things being equal (ceteris paribw), Carrier is obligated under Article VII to call the crew whose consist contains a number of wrecking crew members sufficient to perform the wrecking service work.

 In so finding, we are of the belief that the determination as to which of the reasonably accessible assigned wrecking crews is of sufficient size (in those situations where more than one wrecking crew is reasonably accessible to the wreck, with all other things being equal), should be based, among other considerations, on the size of the independent contractor's crew arranged for by carrier relative to the comparative differences in crew size among the eligible wrecking crews. These determinations should be made on a case by case basis.

 Accordingly we find the Carrier in the instant case did violate Article VII of the December ~, 1975 Agreement when it chose to use the smaller wrecking crew at Grafton over the larger wrecking crew at Cumberland. To hold otherwise would be to circumscribe the spirit and intent of Article VII as it applies to employees of the Carmen craft and class holding regularly assigned wrecking crew positions.

Claim sustained. Carrier is directed to compensate the Claimants named herein the amount of wages they would have earned had they been assigned to perform the wrecking service work associated with the derailment on May 10 and May 11, 1977.
 Form 1
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 Attest: Executive Secretary
 National Railroad Adjustment Board

 Award No. 8284
 Docket No. 8015
 2-B&O-CM-'80

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


By ,/ ~G/ `r
 rie Brasch - Administrative Assistant

 Dated at hicago, Illinois, this 26th day of March, 1980.
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