Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award. No.
8798
SECOND DIVISION Docket No.
8683
2-EJSE-C'M-
181
The Second Divi:1on consisted of the regular members and in
addition RefereE Martin F. Scheinman when award was rendered.
BrDtherhood Railway Carmen of the United States
Parties to Dispute: and Canada
( Elgin, Joliet & Eastern Railway Company
Dispute: Claim of Employes:
1. That the Elgin, Joliet and Eastern Railway Company violated the current
working agreement., specifically Rule 50, when they contracted Vance
Corporation, an outside contractor, to rerail tank car A.C.F.X.
88752 on
October
31, 1978
and failed to use any of the grotnmdmen from the Joliet,
Illinois based wreck crew.
2. That the Elgin, Joliet and Eastern Railway Company be ordered to compensat
Carmen wrecking crew members, Paul Lopez, Jim Pampuch and Joseph L. Bick
for
eight
(8)
hours pay each at the pro rata rate, one half (1/2) hour
at the time and one half rate and three
(3)
hours pay at the time and
one half rate of pay for traveling time.
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
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimants, Carmen Paul Lopez, Jim Papuch and Joseph L. Bick, are members of
the East Joliet, Illinois wrecking crew. The organization contends that Carrier
violated Rule
50
of the Agreement when it failed to call Claimants to assist in
rerailing work at a derailment at Leithton, Illinois on October
31, 1978.
Carrier,
instead, contracted the Vance Corporation, an outside contractor.
Rule
50
reads in pertinent part:
"(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.
(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
Form 1 Award No.
$798
Page 2 Docket No.
8683
2-EJ&E-CM-'81
"the wreck, will be called (with or without the Carrier's
wrecking equipment and its operators) to work with the con
tractor. 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 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.
(d) When the responsibility for a derailment lies with an
industry, the rerailment may be performed by the industry -without penalty. If the industry requests assistance from
the Carrier, the controlling Agreement between the Carrier
and the Carmen's Organization governs. (Responsibility
depends upon type of service, equipment condition, track
condition, track location, action or negligence of the
industry, etc.)
If the responsibility for a derailment lies with the Carrier,
the rerailmnt will be performed by Carrier's employes in
accordance with existing agreements and understandings.
(Responsibility will depend upon type of service, equipment
condition, track condition, track location, action or negligence
of the Carrier, etc.)
r~I
For purposes of clarification, Carrier in this dispute is the Elgin, Joliet
and Eastern Railway Company. This derailment, consisting of six
(6)
cars, occurred
on October
26, 1978,
when the train was being moved onto trackage belonging to the
Soo Line Railroad. Carrier's Wreck Truck
#157
and crew was dispatched to Leithton.
While this crew was en route, Soo Line and Carrier personnel determined that the
derailment was Soo Line responsibility as it occurred on its portion of the wye.
Soo Line personnel then asked Carrier to rerail cars and bill them for cost incurred.
Wreck Truck
#157
rerailed five
(5)
of the six
(6)
cars on October
26, 1978.
Carrier states that due to the specific equipment required to rerail the
remaining car, Soo Line personnel again asked Carrier to arrange for equipment and
bill them for cost incurred. Carrier further states that its own 100-ton crane
was unavailable and then called the outside contractor who rerailed the remaining
car on October
31, 1978.
The Organization claims that Claimants should have been used to perform this
work before the ground forces of an outside contractor. It also argues that since
the Soo Line requested Carrier's assistance, that Claimants were entitled to this
work.
Carrier, on the other hand, insists that Carmen do not have the exclusive right
to rerailing work under all conditions. It further contends that it is fully within
their prerogative to decide which wrecking crew, if any, is needed and that in this
dispute, the rerailing wcrk occurred on outside of yard limits on a foreign carrier's
property, and hence, is riot subject to the terms of the Agreement.
Form 1
Page 3
Award No.
8798
Docket No.
8683
2-EJ8E-CM-,'
81
Carrier's contention that Carmen have no exclusive rights to rerailing work
has been sustained in numerous Second Division Awards. Award No. 7074 states in
part:
"Turning first to Petitioner's contention of exclusivity,
although prior Awards are not in complete agreement, the
clear weight of authority supports the principle that under
Rule 142 (or similar Rules) Carmen do not have the exclusive
right to do the work of rerailing cars unless a wrecking
outfit and crew are called or required to do the work. These
findings have been made as to wrecks occurring within and
outside of yard limits.
See Awards ~ 2343, 3257, 4337, 4901, 4931, 5306, 5621, 5860,
6080, 6451+ and 6703."
In this case, it is apparent that Carrier was within its rights in determining
that a wrecking crew was not needed. In evaluating the question of Rule 50"s
application to a derailment on foreign Carrier's property, we have consistently
adhered to the principle that it is not work which Claimants had any contractual
right to perform. See Second Division Awards 2213, 2992, 4212, 4570, 5857, 5946.
In all, we do not find Carrier's action here subject to the requirements of
the Agreement. Therefore, this claim must be denied.
A W A R D
Claim denied.
Att:st: Executive Secretary
National Railroad Adjustment Board
semarie Brasch - A strative Assistant
Dated t Chicago, Illinois, this 28th day of October, 1981.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division