Form 1 NATIONAL RAILROAD ADJUST= BOARD Award No. 8361
SECOND DIVISION Docket No. 7954
2-B&O-CM-'80
The Second Division consisted of the regular members and in
addition Referee Wesley A. Wildman when award was rendered,
( System Federation No. 4, Railway Employes'
( Department, A, F, of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
No, 1, That under the controlling Agreement the Carrier failed to call
Carmen C. L. Biettner, P. W, Long., R. C. White, P. R. Mahl, and G. B.
Bectel for work in connection with a derailment at Willard Yards,
Willard,, Ohio on April 21, 1977, at which time carmens wrecking work,
within the yard limits, was contracted out to Hulchers Wrecking Service.
No. 2. That the Carrier failed to comply with the rules of the controlling
Agreement, specifically, Rule 142 and Rule 29, and also Wrecking
Service Rule, effective March 27, 1976.
No. 3. That accordingly the Carrier be ordered to compensate the above
identified employes for their losses arising out of this incident
at the Willard Yards, when the Carrier arbitrarily allowed Hulchers
Wrecking Service to perform carmens work in lieu of available carmen;
eight (8) hours and ten (10) minutes pay at the time and one-half
rate for all claimants with the exception of Cayman G. Bectel; six
(6)
hours and ten (10) minutes pay at the time and one-half rate of
pay for Cayman Bectel.
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 employer 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 20, 1977, at approximately 10:20 p.m.,, a ten car derailment
occurred in the eastbound classification yard of the Carrier's property at
Willard, Ohio.
Carrier determined that off track equipment would be required to re-rail
the cars and, accordingly, called for the Rulcher Emergency Service (a so-called
"outside" contractor) which arrived with its equipment at
9:50
a.m. on the next
Form 1 Award No.
8361
Page 2 Docket No.
7954
2-B8c0-CM-' 80
morning, April 21st. The fulcher group acecmpar~ying their equipment consisted
of five
(5)
crew members and three
(3)
foremen.
The Organization asserts that the five
(5)
Hulcher crew members did ground
work on April 21st which should have and could have been assigned to available
carmen of Carrier. Carrier denies that the Hulcher employees did arty significant
volume of g9..roand work, and insists that the total of seven (7) carmen (never
more than five
(5)
working at one time) assigned by it to the retailing task
did all of the ground work that was available for carmen to do.
The ,petitioning Organization argues that Rules
29
and 142 of the controlling
Agreement and Article VII, the "Wrecking Service Rule", of the December
4, 1975
Agreement are applicable to the facts of this case; the Carrier acknowledges
the applicability only of Rule 1112 to the fact situation before us.
It is not necessary here to discuss in detail, or rule on, the applicability
of non-applicability of either Rule 29 or the "Wrecking Service Rule" of the
December
4, 1975
Agreement. Both parties concur that Rule 142 is applicable and
both agree that the essential issue in this case and under this -Rule is,
did the Company under the circumstances prevailing, meet its obligation to
call, per Rule 142, "sufficient carmen ... to perform the work". Rule No.
142,
in its entirety, reads as follows:
"When wrecking crews are called for wrecks or derailments
outside of yard limits, a sufficient number of the
regularly assigned crew will accompar~y the outfit. For
wrecks or derailments within yard limits, sufficient
carmen will be called to perform the work."
What does the record disclose with regard to the essential question of
fact in this case?
1). The petitioning Organization would have us draw an inference from
the presence her se of the Hu7.cher crew to support its position that Carrier
did not assign sufficient of its own carmen to perform the work to be done.
It is argued that the very fact that five
(5)
Hulcher crewmen came to the
property and presumably worked is proof that five
(5)
carmen should have been
called to perform whatever tasks the Hulcher employees were engaged in.
2).
The seven (7) carmen of Carrier who, at one time or another, worked
on the derailment signed identical statements asserting in material fact that,
"Hulcher Wrecking Company arrived .., and immediately engaged in wrecking work
such as carrying hooks and cables, which is considered to be carmen's work".
3).
A foreman of Carrier, one Puckett., stated in writing that "(T)he
work performed by the Hulcher ground crew and Soremea was work consisting of
hooking cables, blocking, chaining to trunks".
Form 1
Page
3
Award No.
8361
Docket No.
795+
2 -BBB-CM-' 80
Carrier makes much of the fact that the carmen's statements mention
specifically only that Hulcher's employees were doing work "such as carrying
hooks and cables". Carrier acknowledges that this might well have been the
case, the equipment in question belonging, after a11, Carrier points out, to
the Hulcher crew's employer. The Carrier asks us, in effect, to draw an
essentially negative inference from the rather mild assertions contained in the
statements of the Carrier's employees. The Carrier argues that if Hulcher's
employees had, for instance, done actual hooking as against simply
carrying
hooking equipment, the Carrier's carmen surely would have so charged in their
statements.
As to the foreman's statement, it does indeed contain a stronger claim with
regard to Hulcher's crew doing ordinary ground work than is found in the
employee avowals. This simple statement by the foreman, however, was never
subjected to verification in a hearing, and is unsubstantiated and not
expanded on by corroborating evidence.
As to the inference the organization would have us draw frown the presence
on the property of the Hulcher crew, we are reluctant to assume that, during
whatever time they were actually working on the day in question, they were
necessarily doing routine ground work which should or could have been done by
Carrier carmen. It is at least conceivable, for instance, that they may have
been engaged in some chores requiring skills peculiar and unique to the
equi,prtnent that they brought with them onto the property.
e
On the record before it, this Board states that it frankly does not have
sufficiently persuasive and credible evidence to allow it to judge whether or
not a significant volume (more than de minimis) of ground work was performed by
the Hulcher crew which .oau1d and should have been performed by the Carrier carnrn,en
under Rule No. 1112. We decline to make a decision on the basis of supposition,
circumstance, and inconclusive, unsubstantiated assertion.
Thus, while we are not finding in favor of the Organization in this case,
we are not so much denying their claim as we are dismissing it for leek of
adequate and conclusive evidence.
A WAR D
Claim dismissed.
Attest: Executive Secretary
National.. Railroad Adjustment Board
By
~~ ~~
~semarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of June,
1980.
NATIONAh RAILROAD ADJUSTMENT BOARD
By Order of Second Division