Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8295
SECOND DIVISION Docket No. 8233
2-EJ&E-CM- `80
The Second Division consisted of the regular members and in
addition Ref eree Herbert L. Marx, Jr. when award was rendered,
( System Federation No. 6, Railway Employes'
Department, A, F, of L. C. I. 0.
Parties to Dispute: ~ (Carmen)
(
( Elgin, Joliet and Eastern Railway Company
Dispute: Claim of Employes:
1, That the Elgin, Joliet & Eastern Railway Company, hereinafter referred
to as the Carrier, violated the current working agreement, specifically
Rule 50, on Wednesday, February 15, 1978 when they contracted the Chicago
and North Western Transportation Company to use their equipment and crew
to perform the necessary wrecking work to upright and retail empty box
car L&N 1L1163 located at the Commonwealth Edison Company Plant in
Waukegan, Illinois,
2. That the Carrier be ordered to compensate the Derrick #5 crew consisting
or Mr, Stainback, C. Cook, P. Lopez,, J. Pompuch, J. Bick, G. Gabriel,
J. Loftis and D. Clements for eight hours each at the Carman's rate of
pay plus an additional seven hours each at the time and one-half rate
for travelling and call time. The above-named Carmen are hereinafter
referred to as Claimants.
Findings:
The Second Division of the Adjustment Board, upon the whole record and a1.7.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
An accident occurred on February 15, 1978 at the Commonwealth Edison Company
plant in Waukegan., Illinois involving the derailment of car WP 35891 and the
derailment and overturning of car L & N 111163. Carrier's Wreck Truck No.
157
was
called to retail WP 35891· The Wreck Truck and its crew were not capable of
uprighting and retailing L & N 71.163, and the crew was ordered to return to its
previously assigned work. To perform the work, the services of the wreck truck
of another Carrier, with supervisor and three-man crew were called in to perfoi:ln
the work.
Form 1 Award No,
8295
Page
2
Docket No.
8233
2-EJ&E-CM-'
80
The organization claims that, under Rule 50, the eight-man crew of Wrecking
Derrick #5 should receive eight hours' pay plus seven hovers' travel time at the
punitive rate for each member of the crew.
Rule
50,
Paragraphs (a), (b) and (c) read as follows:
"Wrecking Crews
(a) Wrecking crews, including crane engineers, firemen and cooks,
shall be composed of regularly assigned Carmen,, and will be
paid for such service as per general rules from time called
until return to their home station. Meals and lodging will
be provided by the Company while crews are on duty in wrecking
service,
(b) When wrecking crews are called for wrecks or derailments outside
of yard limits, the regularly assigned crew will, if necessary,
accompany outfit. For wrecks or derailments within yard limits
sufficient Carmen will be called to perform the work.
(c) 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
r
of the assigned wrecking crew are called. The number of
employes 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 graundmen of
the wrecking crew are called at approximately
the same time as the contractor is instructed to
proceed to the work."
The Carrier cites numerous previous awards denying pay to Carmen for wrecking
services under a variety of circumstances, Without finding fault with the
reasoning in such awards, the Board nevertheless finds that the particular
circumstances here involved require the application of Rule
50
(c), in that the
Carrier utilized the "equipment of a contractor
,,,
for the performance of
wrecking service..." Under the circumstances, where Carrier's wreck truck had
already been involved in a portion of the work at the location in question, the
claim for pay of Rule 50 (c) is sustainable, inclusive of applicable travel time
as referred to in Rule
50
(a),
Form 1 Award No. 8295
Page
3
Docket No.
8233
2-EJ&E-CM-'
80
The Organization's claim is excessive, however, in calling for pay for an
eight-man derrick crew, since no showing was made that such equipment or number
of employes would be required if the Carrier itself had undertaken the work.
Further, there is no dispute that the contractor who performed the work did so
with a three-man crew, charging the Carrier for 28 hours of work.
The claim will therefore be sustained to the extent of payment of a total
of
28
hours to be divided among three employee, plus three hours' travel time for
each of the three employees determined judgmentally based on the distance displayed
in the record. As in other instances involving pay for work not actually
performed., all pay shall be at straight-time rate. The parties shall meet to
determine which three employee shall be paid.
A W A R D
Claim sustained to the extent provided in the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
B
y
~ff~semarie Brasch - Administrative Assistant
Dated alt Chicago, Illinois, this 26th day of March, 1g80.