Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8341
SECOND DIVISION Docket No. 8219
2-TP8aW-0M-'
80
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( System Federation No. 6. Railway Employee'
( Department, A, F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
- (
( Toledo, Peoria & Western Railroad Company
Dispute: Claim. of Employee:
1. That under the current Agreement, Carrier improperly assigned other
than Carmen (Morrison Marine Construction Company) to dismantle
twenty-three
(23)
railroad cars at Marietta, Illinois.
2, That the Carrier reclaimed usable parts consisting of truck sides,
bolsters, A.B. brake valves, A.B.D, brake valves, air brake reservoirs,
hand brakes, hand brake wheels, and car wheels, which totaled five
gondola cars full of reclaimed parts.
3, That accordingly, Carrier be ordered to make the Carmen whole by
additionally compensating Carmen Jim Whetstone, Roy Dippel, Terry
Tracey., Bob Tracey., Jay Young, Bob Caughey, Ed Taylor, Jerry McCulloch,
Jerry Kneer, and Bob Kinman equal number of man hours as spent by
Morrison Marine Construction Company employees cutting up twenty-three
(23) scrap cars and saving of reusable parts.
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 employee involved in this dispute
are respectively carrier and employs within the meaning of the Railway Labor Act
as approved Jane 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 dispute arises from the results of a derailment of 34 cars on June 9,
1978. Of the 34 cars, the Carrier determined that 23 cars were to be scrapped
and the Carrier entered into an agreement with an outside firm, Morrison Marine
and construction., for this purpose. The agreement included provisions for
representatives of the Carrier to mask on such cars, certain "parts and trucks",
which were to be returned by the outside firm to the Carrier. There is no dispute
that such "parts and trucks" filled five gondola cars, as claimed by the
organization.
Form 1 Award No.
83+1
Page
2
Docket No.
8219
2-TP&W-CM-' 80
The Organization claims that the work of dismantling (for purposes of reuse)
and of scrapping the cars should have been assigned to Carmen and that the
performance of such work by the outside contractor was in violation of rules under
the applicable agreement.
Rule
29,
Assignment of Work, provides in part:
"None but mechanics or apprentices regularly employed as such
shall do mechanic's work as per the special rules of each
craft..."
Rule 122, Classification of Work, provides that "Carmen's work shall consist
of_ , dismantling _ , freight cars _ , "
The Carrier argues that its primary purpose herein was to divest itself
of the damaged cars and, to do so, exercised its right to sell. the cars to an
outside firm, an action it claims to be not violative of arty rule. Retention
of certain equipment on the cars was incidental to the operation, according to
the Carrier.
The Board has made numerous decisions in situations similar to this, and
these awards warrant close study for a determination in this dispute, One
basic consideration is the well established principle that a carrier may sell
its property, with the purchaser doing as he wishes with it. In Award No.
6529
(Shapiro)., the Board stated:
"Petitioner does not, in the instant matter, challenge the right
of Carrier to sell its equipment and have the purchaser remove
same fraan Carrier's property. If it did, it would have been
faced with the holdings of this Board rejecting claims based
thereon. Awards
2377, 2922, 3158, 3228, 3585, 3586, 3635,
3636, 3739, 4+76, 5957,
and
5958."
The Board, however, has examined intent in other instances. Where the Board
has found that property has been disposed of but the Carrier has simultaneously
exercised the right to reclaim the dismantled property in its component pieces,
a different finding appears. In such instances, the Board has found that
employes (i.e., Carmen) have been improperly denied work which should be assigned
to them. Award No.
6800
(O'Brien) states:
"No one is questioning Carrier's right to sell its equipment and
have the purchaser remove it from Carrier's property. However,
such was not the case at hand. Carrier concedes that the
contract with Milkie required that certain specified material
be returned to it. We are forced to conclude from the record
before us that the primary purpose of the contract with Milkie
was the dismantling of the freight cars in question with
Carrier's intent to salvage useable parts and scrap metal.
Since such was the primary result sought we deem this to be
Carmen's work and they should have been assigned thereto
by Carrier. Rule
138
of the Agreement having been violated
Form 1 Award No.
8341
Page 3
Docket No. 8219
2-TP&W-CIA'
80
"here we shall allow the compensation claimed but at the
pro rata rate."
Likewise, Awards Nos. 7660 and 7661 (William):
"Numerous
awards have held that a Carrier is free to sell its
property and such a sale would. not violate Classification of
Work Rules. The basic issue in such cases is whether the
primary purpose of the agreement is a sale or it is a
contracting out of work covered by a Classification of Work
Rule. In this case, the agreement includes a firm price
which tends to show a sale, On the other hand, the term
requiring the return of reusable parts tends to show the
Carrier was contracting out the work. Given these terms
in the agreement, the Carrier was receiving the same
benefits frown the outside firm that it would. have received
from the Claimants had they performed the work. The
purpose of the agreement therefore appears to be primarily a
contracting out of work rather than a sale of property. See
Second Division Awards 6529 and 6800,"
What, then, of the present dispute? The Board finds that the Carrier's
overriding intention was to dispose of the cars and actually sold them not with
a view to retaining them in their component parts (i.e.., scrap and reusable
parts). Nevertheless, the Carrier did specify in advance -- by contract and by
identification with its own personnel -- that it wished to retain certain
equipment on the cars, This portion of the work fell clearly within the
"dismantling" function for salvage purposes. These salvaged items did not
effectively leave the Carrier's possession, and the work was clearly within
Carmen work classification. Another case is instructive here, in which a
claim by Carmen was denied because the Board found that Carmen.. having first
salvaged certain parts of freight cars, went on to claim the subsequent
scrapping work which had been given to an outside contractor. This is Award No.
7960
(Weiss),, which is quoted at length:
"Both parties in their Submissions and during the processing
of the claim on the property referred to a prior case -the Mina. case. Carrier's position is that in the Mina case
it used a contractor to salvage usable parts, which it
acknowledged was Carmen's work, however, the cutting up
of the cars for scrap loading, also performed by the
contractor, was not considered Carmen's work and no claim
was made for that work in the handling of that case.
The instant case is distinguishable, according to Carrier,
in that Carmen (not the contractor) salvaged the usable
parts. Unlike the Mina case, therefore, the instant claim
involves only the cutting up of cars for scrap, And on
that issue, Carrier submitted a list shaving, over a 5-year
period., that it had used contractors for cutting up for
scrap, cars involved in derailment.
Form 1
Page
4
Award No. 83+1
Docket No. 8219
2-TP&W-CM-`80
"In sum, on the basis of the disposition of the Mina case
and the Carmen's Work Classification Rule, Carrier denies
that the work in question is reserved to Carmen.
A close reading of the record supports the finding that
the disputed work was not a salvage operation but a scrap
process, and that the contractor was used only after members
of the Carmen craft had completed the salvaging of parts
operation. No probative evidence has been submitted by
Petitioner that the contractor used by the Carrier performed
salvage work or that cutting up of scrap is either contractually
reserved to Carmen or that such work belongs to Carmen ox that
such work belongs to Carmen on the basis of past practice.
Carrier's records and itemization of use of contractors over
a 5-year period effectively refutes Petitioner's allegations.
Accordingly, we will dear the claim."
Returning now to the present claim, the Board finds, consistent with past
awards, that the Carrier was within its rights to dispose of the damaged cars
by sale to an outside contractor who came into fu11 possession of the cars -
except for those parts marked for salvage. As to the salvaged parts, the Board
again consistent with past findings, that this was Carmen's work, and
that Carmen were improperly denied the right to perform that part of the work
relating to dismantling for the purpose of salvage.
The claim calls for payment of "equal number of maxi hours as spent by
Morrison Marine Construction Company employees cutting up twenty-three (23)
scrap cars sad saving of reusable patter". As w311 be seen from the above, the
claim is not sustainable to this extent. The claim is sustained, hvhrever,only
to the extent of the number of hours, divided among the identified Claimants
which would have approximated the time to salvage those pieces of equipment
designated by the Carrier, fox salvage. The number of hours is best determined
by the parties themselves.
A W A R D
Claim sustained to the extent determined in the Findings.
NATIONAL, RAILROAD ADJUSTMENT BQA,RD
By Order of Second Division
AttAst: Executive Secretary
Nat
_ Brasc
Y4t
01
Dated at Chic: