Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9976
SECOND DIVISION Locket No. 9118
- , 2-C&NW-CM-' 84

The Second Division consisted of the regular members and in addition Referee Gilbert H. Vernon when award was rendered.

( Brotherhood Railway Carmen of the United States

Parties to Dispute: ( and Canada

(

( Chicago and North Western Transportation Company

Dispute: Claim of Employes:

1. That the Chicago and North Western Transportation Company violated

Article V of the August 21, 1954 Agreement when Director of Labor

Relations Fremon failed to give written reasons for denial of General

Chairman Murphy's appeal dated November 15, 1979.

2. Carman Kenneth Gille, Green Bay, Wisconsin, ;gas deprived of wages to

which he is contractually entitled in the ai-ount o f 15 hours pay at

the pro rata rate, account the Chicago and North Western Transportation

Company called mechanics-in-charge to peform carmen's work at derailments

at Eland, Wisconsin on August 25, 1979.

3. That the Chicago and North Western Transportation Company be ordered

to compensate Carman K. Gille in the amount of 15 hours pay at the

pro rata 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 ;.thin 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.

T h1 s i 5 One of several c 1 ai.7Zs progressed to the Board inVOJVIng '= he Carrier ' g

use of a "Mechanic-in-Charge" or "MIC" to perform carmer_ work away from the

headquarter point in connection with derailments. Award 9198 was sustained on

a procedural point, Award 9717 was dismissed on a procedural point, Award 9394

and Award 9716 were sustained because the facts involved the use of a contractor

and it was found that Rule 127 was controlling and specifically required the

use of. a minimum of two "carmen" under such circumstances. This case is unique

and distinguished from the others because: (1) it does not involve any procedural

issues of any substance. It should be noted that while the statement of claim

makes reference to violation of Article V of the August 21, 1954 Agreement,

there is no treatment of this procedural contention in the Enployes' Submission.

Tn view thereof, essentially speaking, no orocedural issue is before the Board;

(2) This case is also distnguis:,.ed because -it does rot ZI:Vo1Ve r 2-.e use of a

contractor and therefore Rule 127 would riot necessarily be controlling.

Form 1 Award No. 9976
page 2 Locket No. 9118
2-C&NW-CM-'84

Some additional .background is necessary. On this Carrier, Mechanics-inC.harge come under the Federated Crafts agreement, although not subject to certain rules of such agreement. They are monthly rated, and work 5 days one week, 6 days the next, for the monthly rate. Time worked outside assigned hours is paid for at overtime rate. For purposes of the Union Shop Agreement, incumbents of Mechanic-in-Charge positions are required to maintain union membership, and to the best of the Carrier's information maintain membership in the craft from which promoted. Almost without exception, Mechanics-in-Charge are selected from mechanics emplo,ed by the Carrier. Mechanics so appointed do not establish separate seniority as tlechanics-in-Charge, but retain and continue to accumulate seniority in their craft at ho,Te point.

In this case, the Carrier called the MIC Gary Dekan who was headquartered at Wausau, Wisconsin, to proceed to Eland, Wisconsin, to rerail three freight cars. He was joined by a Cayman from Green Bay, Wisconsin. The Organization. contends the CZainant should have been used in lieu of the l^.echanic-in-Charge.

Generally, the Organization takes the position that the Nlechanic-in-C1,arge is limited to the point employed. The Organization submits that Rules 10, 29, 53, and Memorandums of Agreement covering Rules 126 and 127 were violated. These rules read as follows:

Rule 10: °An employe regularly assigned to work at a shop, enginehouse, repair track or inspection point, when called for emergency ,road work away from such shop, enginehouse, repair track or inspection point, will be paid from the time ordered to leave home station until his return for all time worked in accordance with practice at home station and will be paid straight time rate for traveling or waiting, except rest days and holidays, which will be paid for at the rate of tine and one-half.

If, during the time on the road a man is relieved from duty and permitted to go to bed for five or more :ours, such relief time will not be paid, provided that in no case shall he be paid for a total of less than eight hours each calendar day when such irregular service prevents the employe from making his regular daily hours at home station. Where meals and 1ndging are not provided by the railway company, actual necessary expenses will be allowed.

Employes will be called as nearly as possible ore hour before leaving time, and on their return will deliver tools at points designated.

If required to leave home station during overtime hours they will be allowed one hour preparatory time at straight-time rate.

Wrecking service employes will be paid under this rule except that all time working, waiting or traveling on week days after the recognized straight-time hours at home station and all time working, waiting or traveling on rest days and holidays will be paid for at rate of time and one-half.,,

Form 1 Award No. 9976

Page 3 Docket No. 9118

2 -C& NPT-ClK- ' 84

Rule 29: "None but mechanics and apprentices regularly employed as such shall do mechanics' work as per special rules of each craft.

At a point where it is proved to the satisfaction of the parties to this agreement that more than two hours work is done in any day or night shift in any one day based on the average of one week, a mechanic will be employed.

This does not preclude work being performed by car department mechanicsin-charge assigned to outlying points at -which the force does not exceed five men, or in train yards." .

Rule 53: "Mechanics' work as defined in the special rules of each craft will be performed by mechanics, regular and helper apprentices to the respective crafts."

"i'IE(~IORAJDUM OF AGREE,'-IE:1IT BETTIEEN THE CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY !AND THE BROTHERHOOD P-41 =WAY CAR:IEN OF UNITED STATES AND CANADA CORING AGREEMENT, USE AND COMPENSATION OF GIRECKIATG CREP75

It is hereby agreed by and between the parties hereto that effecuive March 1, 1976 Rules 126 and 127 of Carmen 's Special Rules as contained in the existing agreement are interpreted to apply as follows:

1. The existing practice of bulletining carmen's positions and separately

bulletining 'wrecker service' positions, which are not in fact regular

assignments, shall be discontinued. Hereafter at points where 'wrecking

crews' are required specific assignments shall be bulletin.ed to also

protect wrecking service, and applicants therefor must be qualified for

and accept the complete assignment (including wrecking service).

2. Subject to the exceptions contained in the second paragraph of Rule

127 it is understood and agreed that Rule 127 covers wrecking work at all

wrecks and derailments on the right of way of the C&NWT, including

operation of machinery involved in rerailing operation; handling all hooks

and cables, making all hitches, securing and setting all blocking and

foundations, setting outriggings, securing, handling, setting and

operating jacks, setting and securing rerailers and other equipment used

to clear un wrecks and derailments; Provided:

(a) At wrecks or derailments where the Carrier deems it necessary to employ equipment of outside contractors such as cranes, bulldozers, etc., to clear up wrecks or derailments, the contractor may furnish the operators of such equipment provided a minimum of 2 carrnen employed by the C&NWT are utilized in wrecking service at the scene during the hours the contractor's equipment is operated. In the event additional men are required they will be taken from the carmen class.

1
Form 1 Award No. 9976
Page 4 Locket No. 9118
2-C&NW-CM-'84 i(b) Where the use of the contractor's equipment as set forth in (a)
is contingent upon the contractor furnishing personnel other than
actual operators of such equipment, it is agreed that the carrier
will provide one carman for each man (other than operators) furnished
by the contractor (including in such count the 2-man minimum set
forth in (a)) with maximum of 6 men. Where contractor furnishes over
12 men other than operators than the maximum of C&PIWT carmer will be
increased to 8.
(c) The above requirements are contingent upon the carmen employes
being reasonably accessible to the wreck.
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.

3. Where carmen are to be used in wrecking service from points where

wrecking service crews are assigned, cam en assigned to such required

wrecking service or alternate men shall be used if available. If

additional men are required they shall be called in seniority order from

the list furnished by tile local chairman. .

4. Carmen engaged in wrecker service shall while so engaged be compensated

at their regular rate (straight time or overtime as the case may be) from

time reporting at headquarters, until released at headquarters, subject to

release for rest provisions at wreck site, with premium pay of 30 cents

per hour for wrecker engineer and 25 cents per hour for remainder of

wrecker crew. This premium pay is an arbitrary and is not subject to

escalation; nor does it vary whether time paid for is at straight time or

penalty rate. Any and all requirements that the wrecker crew accompany

the 'wrecker,' or that time paid for continues until wrecker returns to

headquarters are eliminated.

5. In determining what constitutes wrecking service it is understood that

time traveling to wreck site from headquarters, and wreck site to

headquarters constitutes wrecking service, and is to be paid for as time

worked. It is further understood that ca--men may be used as 'escort drivers'

or to actually drive either the Carrier's or Contractor's equipment to or

from wreck sites, and that the wrecker rate above set forth covers such

service.

6. The premium pay set forth in Item 4 hereof applies to operators and

carmen of the 'wrecking trucks' of the carrier when such trucks are engaged

in wrecking service.

7. The existing agreement between the former M&StL and the BRC of the

United States and Canada which provided for payment at overtime rate for

any wrecking service outside yard limits, which agreement was continued in

effect for former :"_&StL carrten subsequent to placing such carmen under the

C&NW agreement (Green :book) is cancelled.

Form 1 Award No. 9976
Page S Docket No. 9118
2-C& NW-CM- ' 84

8. Nothing contained herein shall be construed as to deprive other

shopcraft employes of work covered by their classification of work rules.

Neither does anything contained herein effect the rights of M of W

employes in connection with the performance of M of W work at wreck sites.

9. Existing wrecking service positions will not be rebulletined as a

result of this agreement.

10. The above Memorandum Agreement constitutes the election of the

General Chairman under Article VII - Wrecking Service of the National

Agreement. Case No. A-9699 effective January 12, 1976 and the provisions

of this Memorandum Agreement will apply in lieu of such Article VII."

The Carrier takes the position that the Agreement of '-lay 23, 1939, which established Mechanics-in-Charge specifically stated that they will "be permitted to do any and all mechanics work." Further, it is =he .position of the Carrier that from 1939 to approximately the time the instant claim was initiated that %echanics-in-Ch-azge at outlying points have performed car and motive power work at points other than where headquartered, teat such performance has been known to the Organization, and that the propriety of such use had not previously been questioned. For instance, at the time negotiations were held leading up to the May 23, 1939 Agreement, the Carrier's records indicate there were a total of 32 working foreman (subsequently called Mechanics-in-Charge) employed by the Carrier in its Car Department. They attach as a Carrier Exhibit, a statement dated February 23, 1939 showing the locations at which assigned and the work performed by each. The Carrier calls the Board's attention to the fact that of the 32 N:echanics-in-Charge, 23 or 72% of such Mechanics-in-Charge performed road work, i.e. took care of bad order cars set out at points other than at the headquarters of the assignment at the time of the 1939 agreement. The Carrier's records clearly indicate that during the negotiations resulting in the May 23, 1939 Agreement, organization representatives never at any time contested the practice of Mechanics-in-Charge performing road work. They also emphasize that such Mechanics-in-Charge have in fact continued subsequent to May 23, 1939, to perform road work as indicated on their Exhibit A.

The Carrier also mentions that in an August 6, 1980 letter the Carrier made the following statements which they suggest remained unchallenged by the Organization:

"We have MIC's stationed at the following locations with assigned road and work areas ZS to 150 miles from stations where. assignment is started and completed. Some of these positions have been in existence for the past 30 years. Their work assignment covers all phases of carmen's work which includes inspection, measurement of open-top loads and repairs.

Stations are: Wood Street, 40th Street, West Chicago, Sterling, Rochelle, Irondale, Fremont, Mmes, Missouri Valley, Madison, Wisconsin, Crystal Lake, Harvard, Lake Geneva, Adams, Altoona, Appleton, Antoine, Rhinelander, Wausau, Marinette, Manitowoc, New Ulm, Tracy, Fort Lodge, Eagle Grove, Norfolk, Rapid City, 3elle Fourche and Worthington."

Form 1 Award No. 9976
Page 6 Locket No. 9118
2 -C& NW-CM- ' 84

The Board has considered the arguments of the parties and have arrived at a number of threshold conclusions. The Carrier asserts that without rebuttal that Mechanics-in-Charge have done work away from their headquartered point. When this is considered in conjunction with the 1939 Agreement--which recognized the practice in effect at the time of Mechanics-in-Charge doing road work-there can be little doubt that MIC's can, generally speaking, do mechanics work on the line of road away from, their headquarters point.

However, beyond this threshold consideration it must be asked whether there is any specific exception elsewt-,ere in agreements between the parties which could be considered as reserving work in conjunction with derailments to Carmen to the exclusion of MIC's. In Award 9394 such a specific exception to the more general 1939 Agreement was found in the 3-1-76 Memorandum of Agreement relating to Rules 126 and 127. This exception related to derailments where contractors were utilized.

A further review of the Agreement including Rules 126, 127 and the P3emorandum related thereto fails to reveal any specific exception which would reserve work on the line of road in connection with derailments to Carmen under the circumstances.

The second paragraph of Rule 127 clearly would allow the use of employes such as the Mechanic-in-Charge. Rule 127 from the Agreement reads:

"A11 or part of regularly assigned wrecking crews, as may be required, will be called for wrecks or derailments.

This does not preclude using other employes to pick up or clear minor derailments when wrecking derrick is not needed."

It is also noted that the Organization challenged the practicality of the Carrier's having not sent two carmen from Green Bay as opposed to transporting two separate employes from two separate points. The assignment of employes so long as it is consistent with the Agreement is clearly within the prerogatives of the Carrier. Therefore, the Board will make no finding on this point.

In view of the foregoing, the claim is denied.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest

Nancy J. -Executive Secretary

Dated at Chicago, Illinois, this 20th day of June, 1984