Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9095
SECOND DIVISION Docket No. 9169
2-B8c0-CM-' 82
The Second Division consisted of the regular members and in
addition Referee John B. LaRocco when award was rendered.
( Brotherhood Railway Cayman of the United States
Parties to Dispute: ( and Canada
(
( Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:_
No. 1. That Carrier violated the terms of the controlling Agreement, when,
on the date of August 29, 1979 Carrier failed to call Cayman J. H.
Steward, J. L. Campbell, M. L. Nelson, G. L. Ritchie, relief members
of the Cumberland assigned wrecking crew, to accompany the Cumberland
Tool Cars to a derailment at Foley, Pennsylvania and utilized the services
of an outside contractor, Hulcher Emergency Service, equipment, three
operators, two foremen, and five groundmen, allowing them to perform not
only wrecking service, but further allowing them to perform work of
rebuilding trucks and securing trailers on flat cars, such work accruing
specifically to Carmen by virtue of Rule 138 of the controlling
Agreement, and in so allowing, places the Carrier in violation of Rule
29 of the controlling Agreement. Utilizing Hulcher forces at this
derailment in lieu of Claimants further places Carrier in violation
of Rule 142 of the controlling Agreement, as well as Article VII of
the December 4, 1975 Agreement, and Rule 15.
No. 2, That accordingly, Carrier be ordered to compensate Claimants, J. G.
Steward, J. L. Campbell, M. L. Nelson, and G. L. Ritchie, for their
losses arising account this violation as follows: Cayman J. G. Steward,
J. L. Campbell, M. L. Nelson and G. L. Ritchie, for fifteen (15) and
one-half (ll2) hours` pay each, at the straight-time rate.
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 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 August 29, 1979, the Carrier called an outside contractor and the Cumberland
assigned wrecking crew to perform wrecking service at a derailment near Foley,
Pennsylvania. The Cumberland wrecking crew consists of sixteen assigned members.
Twelve of the sixteen members responded to the Carrier's call. Two members were
unavailable due to illness and two members declined to work.
Form 1 Award No.
9095
Page 2 Docket No.
9169
2-B8O-CM-'82 -
The organization brings this claim on behalf of four Carmen stationed at
Cumberland contending the Carrier should hate also called the Claimants to fill
the places of the absent members of the assigned wrecking crew. To support its
claim, the Organization cites Rules 141 and 142 of the working Agreement and
Article VII of the December 4,
1975
Agreement. In essence, the Organization
identifies the Claimants as relief members of the Cumberland assigned wrecking
crew who are absolutely entitled to be called so that the maximum complement of
employees actually work each time the crew is called. The Carrier disagrees
with the label the Organization places on the Claimants contending they ante not
relief members of the assigned wrecking crew. In the alternative, even if
Claimants are construed to be relief members of the crew, Carrier maintains that
it satisfied all its contractual obligations when it called the regularly assigned
members. According to the Carrier, the Organization has failed to point to any
language in Article VII or Rules 141 and 142 which mandates that sixteen wrecking
crew carmen actually accompany the outfit each time the crew is called. The
Carrier acknowledges that it must call the sixteen regularly assigned members but
asserts it need not call any relief workers when one or more of the regularly
assigned members declines to work or is otherwise absent.
Also, the Carrier contends the instant claim should be dismissed because of
an alleged procedural defect. At one step of the appeal, the organization
inadvertently requested that the Claimants be compensated at the overtime rate.
However, this technical error was immediately corrected and the claim for straight
time pay progressed to this Board matches the claim originally filed on the
property.
Turning to the merits, this Board recently considered a similar dispute
between these same parties. Second Division Award No.
8679
(Weiss). In Award
No.
8679
we ruled that there is "... no requirement that the Carrier must call
members of the relief crew when any of the designated members of the 'assigned
wrecking crew' are not available or do not make themselves available when called
for wrecking service." We also interpreted the Carrier's obligation under Article
VII as follows:
"Article VII refers to 'the Carrier's assigned wrecking
crew'; i.e., named employes* Carrier's obligation is to
call all such assigned wrecking crew members who are
'availab le and reasonably accessible' before using a
contractor's ground forces. Such obligation, in our view,
does not extend to relief wrecking crew carmen, inasmuch
as they are not designated, under the Agreement as members
of 'Carrier's assigned wrecking crew."'
Since the Carrier called all available and reasonably accessible designated
members of the Cumberland crew on August
29, 1979,
the Carrier complied with
Article VII. Accordingly, for the reasons mare fully explained in Award No.
8679,
we deny this claim.
We note that the parties, in this record, presented extensive arguments
regarding the alleged existence of vacancies on the Cumberland assigned wrecking
crew as well as an alleged duty of the Carrier to bulletin any such vacancies.
Form 1 Award No.
9095
Page
3
Docket No. 9169
2-B&O-CM-'82
These issues are outside the scope of the Organization's statement of the
claim either on the property or before this Board. We have not addressed these
issues and we make no finding on the merits, if any, of either party's argument.
Our decision should not be construed as an endorsement of either party's
position on these collateral issues.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
/~ ._
By -~c..~
os marie Brasch Administrative Assistant
Dated a Chicago, Illinois, this 19th day of May, 1982.
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