Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD ~ Award No. 9014
SECOND DIVISION Docket No.
8676
2-B&O-CM-'82
The Second Division consisted of the regular members and in
addition Referee Thomas F. Carey when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That under the controlling Agreement, the provisions of Article VII
of the December 4,
1975
Agreement, were violated on September
30, 1978,
when the Carrier refused to recognize and call the regular assigned
wrecking crew from Benwood, West Virginia, to a derailment at Allen,
West Virginia.
2. That accordingly, the Carrier be ordered to compensate Carmen W. C.
Church, G. R. Wade, and L. A. Sharpe, for sixteen
(16)
hours pay at the
time and one-half rate and five
(5)
hours' pay at the double time rate:
each, and Carmen John J. W-gner, W. S. Phipps, H. A. Conti and E.
Magnone, for eight
(8)
hours' at the straight time rate, twelve
(12)
hours' at the time and one-half rate and one (1) hour at the double
time rate each.
3.
That the Carrier, be ordered to pay the claim in its' entirety, account
of defaulting, under Article V., of the January 1,
1955
Agreement.
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 Joe
21, 1934.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The record indicates the previously mentioned Ca n, from Benwood, West
Virginia were employed by the Baltimore and Ohio Railroad at Benwood, West Virginia.
The basic facts of the case are not in dispute.
The record indicates that on September
27, 1978,
at approximately
7:55
p.m._
Train CU
36
derailed 4 cars at Allen, West Virginia. Donahue Brothers Emergency
Service was contacted on the evening of September
29, 1978
and instructed to
arrange to be at the derailment site at approximately 6:00 a.m. on September
30,
1978.
Donahue arrived at the scene of the derailment at approximately
7:00
a.m.
on the morning of September
30, 1978,
cleared the derailment, was relieved and
departed the property at approximately
1:30
P.m., September
30, 1978.
Form 1 Award No. 9014
Page 2 Docket No.
8676
2-B&-O-CM-'82
The Carrier reports that "prior to August
1978,
Carrier had maintained at
Benwood a wreck derrick and an assigned wrecking crew. In August of
1978,
however, it was determined that the wreck derrick assigned at Benwood was in need
of extensive repair. Therefore, during August
1978,
the wreck derrick was removed
from Benwood and forwarded to Carrier's locomotive repair facility at Glenwood,
Pennsylvania. At that time, it was determined that it was not feasible to repair
the derrick, and it was removed from service. Since August
1978,
there has been.
no wrecking derrick or wrecking crew at Benwood."
The Organization asserts that "there is in existence a seven
(7)
man wrecking
crew, assigned by bid and bulletin, at Benwood, West Virginia. The Carrier, on the
date in question, failed to call the regularly assigned crew, from Benwood. A
time claim under date of October 2,
1978,
was submitted in behalf of the regularly
assigned crew. The carmen's wrecking assignments have been longstanding and
assigned by bid and bulletin. These positions remain intact and have not been
abolished and all the Claimants are still standing on these positions."
The controlling provisions of Article VII of the December 4,
1975
Agreement.
reads as follows:
"1. 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 of the assigned wrecking crew are called. The number
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.
2. This Article shall become effective
75
days after the
effective date of this Agreement except on such roads as
the general chairman of the Carman elects to preserve
existing rules in their entirety and so notifies the carrier
within 45 days of the effective date of this Agreement. Where
this Article does become effective, it modifies existing rules
only to the extent specifically provided in this Article."
Emphasis added
The issue of whether there did exist an "assigned wrecking crew", as
advocated by the Organization, or whether "without a wrecking derrick there can
Form 1 Award No. 9014
page
3
Docket No.
8676
2-B&O-CM-' 82
be no wrecking crew", as advanced by the Carrier, was addressed in Second Division
Award No.
7926
(Larney). That decision of the Board, relied upon by the Organization, sets forth its reasoning and conclusions as follows:
"In reviewing the record, the Board finds the logic of
Carrier's argument appealing but not persuasive. Even if
this Board were to accept the following fundamentally core
argument, Carrier has sequentially advanced that:
(1) A derrick of the
150
ton steam variety is the
central piece of equipment comprising a 'wreck
outfit' and without a derrick there can be no
`wreck outfit'; and
(2) A 'wreck outfit' presupposes a 'wreck crew' and
the two are so inextricably bound together, that
where no wreck outfit exists there can be no
wreck crew;
nevertheless, there still remains the fact that wreck crew
assignments are bulletined positions and as such are subject
to the abolishment procedures set forth in Article III,
Rule 24(h) of the June
5,
1962 National Agreement. The Board
notes that such wrecking crew positions apparently were never
formally abolished at Washington, Indiana in accordance with
Article III, Rule 24(h) either at the time the derrick was
reassigned in 1972 nor any time subsequent to the removal
of the derrick .
... The Board finds that the mere removal of the derrick
from Washington, Indiana in the instant case, did not
simultaneously automatically cause the elimination of
the wrecking crew positions. Abolition of said assignments
could have been accomplished by complying with Article III,
Rule 24(h) of the June
5,
1962 National Agreement."
The Carrier vigorously dissented from the aforementioned award as being
"palpably erroneous". However, a similar finding, on a comparable incident, is
reflected in another relatively recent Second Division Award, No.
8766
(Marx),
in which the Board found:
"Whether the Carrier's change of viewpoint in December
1976
alters matters thereafter is not now at issue before the
Board. The existence of an assigned wrecking crew up to
December
1976,
while perhaps not required in view of
limited equipment, was certainly not prohibited. The Board
need not resolve when or how the Carrier might have abolished
the crew; the facts of record are that it not only did not
do so but, until well after the October
6
incident, accepted
and endorsed the crew's existence, thus requiring compliance
with the strictures of Article VII, as here claimed."
Form 1 Award No. 9014
Page
4
Docket No.
8676
2-B&O-CM-'82
The record does not dispute the Organization's representation that the seven
(7)
man wrecking crew at Benwood was a bulletined assignment during the month
immediately preceding the derrick's removal "during August
1978".
The derailment
occurred September
27, 1978.
The language of Article VII of the Agreement addressed the interests and
concerns of both Parties as they were reflected in December
1974.
The utilization
of "the equipment of a contractor (with or without forces)" and the calling of
"the carrier's assigned wrecking crew" (with or without the Carrier's wrecking
equipment) are both referenced. Carrier's arguments assert the logic of their
claim that without a "wrecking derrick" there can be no "assigned wreck crew". The
Carrier cites several awards in support of its position, particularly Second
Division Awards
6498, 5405, 7085,
and
4821.
However, such awards, in pertinent
parts, discuss "wreck outfits" and the equipment necessary to constitute an
"outfit".
Even accepting the Carrier's arguments and citations in their most favorable
light, the language of the Article VII Agreement cannot be ignored. The language
is not found to preclude the existence of an assigned crew "with or without the
Carrier's wrecking equipment". This potential was recognized in Award
8766
(heretofore cited) in which the Board observed:
"But the Board finds nothing in such awards or in applicable
rules which prohibit a Carrier, as here, from maintaining
an 'assigned wrecking crew' even with limited equipment
up to adoption of Article VII in
1975,
and becoming
required hereafter to retain the status quo, as called
for in Article VII, certainly at east until such is
specifically disavowed."
The record sets forth that an "assigned wrecking crew" had been established
at Benwood, West Virginia and was assigned by bid and bulletin. This fact is
not refuted.
The language of Awards
8766
and
7926
establishes that the presence of a
"wrecking derrick" is not an absolute requirement or the sine qua non of the
existence of an "assigned wrecking crew". The.-absence and removal of the
"wrecking derrick" was not found contractually to be the sole determinant which
automatically and instantaneously abolished an "assigned wrecking crew". It
has been demonstrated that when the Division has previously considered and ruled
,on disputes involving the same Parties, rules, and comparable facts, that those
prior decisions should control. The Board cannot pass upon this issue as a matter
of first impression unless it has been demonstrated that the prior Awards are
patently erroneous or the facts strikingly different. The prior decisions are not
found to be arbitrary or capricious so as to warrant reversal.
Whatever other proper actions the carrier pursues to achieve its purpose
relative to the existence of an "assigned wrecking crew" at Benwood, West Virginia,
is a matter left to the Carrier. Absent a showing of such a determination by
the Carrier concerning the Benwood, West Virginia wrecking crew, the Parties are
bound by the terms of their Article VII Agreement.
Form I
Page
5
Award No. 9014
Docket No.
8676
2-B&4-CM,182
The Board notes the general direction of prior Second Division Awards
concerning compensation under comparable situations. The Board accordingly
determines that compensation in the instant case, for each Claimant properly
on the assigned wrecking crew, shall be at the straight time rates for that precise
period the contractor was actually on the site, based upon official records.
A W A R D
The claim is sustained as specified in the Findings contained above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By ...Q . .-,c.x:~
e~.-iw
osemarie
Brasch - Administrative Assistant
Date at Chicago, Illinois, this
14th
day of April, 1982.