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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9933
SECOND DIVISION Locket No. 9.316-T
2-B&O-CM-'84'.
The Second Division consisted of the regular members and in
addition Referee George S. Roukis 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:
No. 1. That Carrier deliberately and arbitrarily allowed carmen employed by a
foreign railroad, the Chesapeake and Ohio Railroad Company, to perform
wrecking work at Fostoria, Ohio, such wrecking work performed on Baltimore
and Ohio property on the date of January 18, 1980. Chesapeake and Ohio
carmen were called to this derailment by the Carrier and in addition
Fondessey Wrecking Service out of Toledo, Ohio was called, arriving on
the scene with two (2) mobile cranes and ground crew. The Willard
assigned wrecking crew was initially called to this derailment and
arbitrarily cancelled and the outside contractor and forces, along with
Chesapeake and Ohio carmen were allowed to perform wrecking work,
accruing to the Baltimore and Ohio, Willard, Ohio, assigned wrecking
crew on Baltimore & Ohio property, in violation of Rules 28, 29, 14.2,
and the December 4, 1975 Agreement.
No. 2. That Carrier be ordered to compensate Claimants for all time lost
account the herein referred to violation, as follows: Carmen, A. J.
Long, G. K. Colich, C. C. Capelle, and P. W. Long, each, for eight (8)
hours at the time and one-half rate and three (3) and one-half hours at
the doubletime rate; R. J. Mahl and L. E. Masterson, each, for eight
(8) hours at the time and one-half 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 employes within the meaning of the Railway Labor Act
as approved June 21, 1934.
a
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
The basic issue in this dispute is whether-the September 15, 1965 Memorandum
Agreement permitted Carrier the right to call Chesapeake & Ohio Railway Carman
forces from Toledo and Columbus, Chio to perform the wrecking service work at:
Fostoria Yard on January 18, 1980. Ck2 the aforesaid date, -at approximately 6:45
P.M. Train Extra East 4041 derailed 5 cars within yard limits at Fostoria,
Ol:Iio.
Initially Carrier had called the Willard Wrecking Crew to perfozm the work, but
immediately cancelled this assignment when it concluded that the wrecking work
accrued to the Chesapeake & Ohio carmen forces. The members of the B&O
Form 1 Award No. 9933
Page 2 Docket No. 9:316-T
2-B& O-CM-' 84
wrecking crew at Willard, Ohio were relieved prior to leaving for Fostoria Yard
and allowed 4 hours pay at the straight time rate for the call. The Organization
subsequently filed a claim on January 27, 1980 charging that Carrier violated
Rules 28, 29 and 142 of the Controlling Agreement and the December 4, 1975 Wrecking
Agreement.
In defense of its claim, the Organization contends that the derailment occurred
on Baltimore & Ohio property, and asserts that all wrecking work on this property
accrues exclusively to B&O carmen. It argues that only the work performed by the
sole carman employed at Fostoria Yard was transferred to the Chesapeake & Ohio
Railroad under the September 15, 1965 Memorandum Agreement and thus, the remaining
work at this location remains with B&O carmen forces. It avers that Rules 28 and
29 pointedly provide seniority protection and assignment exclusivity to the employes
employed on B&O property transferred in the 1965 coordination to the C&O Railroad.
It maintains that the December 4, 1975 Wrecking Agreement is applicable in these
circumstances since Agreement eligible carmen forces were reasonably accessible
to the derailment situs. This pro visioiz states:
"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 contractors ground forces will not be
used, however, unless all available and reasonable accessible members
of the assigned wrecking crew are called."
Carrier contends that the September 15, 1965 Memorandum Agreement is
controlling since it explicitly transferred carman's work performed by B&O forces
at Fostoria Yard to C&O carmen forces. This coordination Agreement provides in
part:
"Carmen work performed by B&O carman forces at Fostoria, Ohio, and work
properly assignable to carmen in the coordinated operation will be
placed under the scope of the C&O Carman's Agreement and performed by
C&O carman forces."
Carrier asserts that in accordance with this Agreement the wrecking service work
needed to be performed on January 18, 1980 accrued to C&O carman forces and the
C&O Carman's Agreement was applicable. It argues that the December 4, 1975
Wrecking Agreement is equally applicable to both the B&O and C&O Railroads and
avers that since Carman's work at Fostoria Yard accrues to C&O carman forces, the
work was properly assigned.
In our review of this case, we concur with Carrier that the C&O carman
forces are entitled to the disputed work at Fostoria Yard. Careful reading of
the September 15, 1965 Agreement does not indicate that it was purposely designed
to apply to the one carman's position at Fostoria and reserve by inference all
other carman's work to the B&O carman forces that may exist or arise at that
Form 1 Award No. 9933
Page 3 Docket No. 9316-T
2-B& O-CM-' 84
location. While the coordination Agreement noted the abolishment of the B&O
carman's position at Fostoria, it also clearly stated that work properly
assignable to carmen in the coordinated operation will be placed under and
performed by C&O carman forces. The language of this provision does not narrowly
restrict its application to only the specific duties performed by the former
carman at Fostoria; it assigned all carman's work at Fostoria Yard to C&O caiman
forces. Moreover, the coordination agreement granted B&O carmen displacement
rights on the C& O carman's roster and authorized concomitant protective benefits.
Since caiman's work at Fostoria Yard now accrued by common agreement to C&O
carman forces, neither the B&O Carman's Agreement nor the December 4, 1975
Wrecking Agreement were violated when Carrier assigned C&O carman forces to
perform the wrecking service work on January 18, 1980.
A W A R D
Claim denied.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Second
Division
Attest: , _
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 6th day of June, 1984