Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10164
SECOND DIVISION Docket No. 9562--T
2-N&W-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 and Canada
Parties to Dispute:
( Norfolk and Western Railway Company
Dispute: Claim of Employes:
1. That the Norfolk and Western Railway Company violated the Current Agreement
of January 1, 1943, (formerly Virginian) as subsequently amended, when
on February 29, 1980, they failed to call the entire regularly assigned
Wreck Crew to perform wrecking service near Oceana, West Virginia, a
Point on the Norfolk and Western Railway Company, but instead called
two (2) Employees from another Craft, the Maintenance of Way, including
an Out-Side Contractor, a Mining Company's off-track equipment, with
one (1) Contract employee. Furthermore, Carrier permited (sic) one (1)
of the M of W Employees to operate a Clamshell, which is converted into
a Derrick Car by changing various attachments to the boom.
2. That the Norfolk and Western Railway Company failed to call one (1)
regularly assigned member of the Wreck Crew, including a Wreck Engineer.
3. That the Norfolk and Western Railway Company did violate the Rules of
the Current Agreement, particularly, Rules No. 113 and 114, including
Article VII of the December 4, 1975 Agreement.
4. Prior to the December 4, 1975 Agreement, the Wreck Crew consisted of
two (2) Carmen, one (1) Helper Carman as Groundman, and (1) Carman
Derrick Engineer.
5. That because of such violations and capricious actions, the Norfolk and
Western Railway Company be ordered to compensate Carmen M. F. Mills ,and
E. J. Clark nine (9) hours at the overtime rate of pay, account, of
loss suffered due to such violations, and restore the same number of
regularly assigned members of the Wreck Crew as was in effect December
4, 1975.
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.
Form 1 Award
No.
10164
Page 2 Docket No. 9562-T
2-N&W-CM-'84
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
In Second Division Award No. 10102 involving the same parties and virtually
the same arbitral questions, the Board held that none of the cited scheduled
Agreement rules nor Article VII of the December 4, 1975 Agreement were violated
when Carrier failed to call the named Claimants and instead, used Maintenance of
Way forces to perform wrecking service on September 8, 1980. In that dispute, we
held that the Clamshell equipment was not a substitute Derrick Wreck Car as
contended by Claimants, and moreover, Carmen did not have exclusive right to
derailment work outside yard limits. More pointedly, we held that no wrecking
crews existed at Elmore.
Since the fact specifics herein are virtually equivalent to the facts in the
above-referenced predecessor case and since we do not find any pivotal distinction
or variable that would justify a reconsideration of the matter, we are constrained,
of necessity, to follow our prior holdings. (See Second Division Award Nos.
10102 and 10134.)
In the case before, there was no violation of Rules 110, 113 or 114 of the
Controlling Rules Agreement, nor any violation of Article VII of the December 4,
1975 Ageement when Carrier on February 29, 1980 failed to call Claimants to perform
wrecking service near Oceana, West Virginia.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
0010
Attest:
Nancy lWer - Executive Secretary
Dated at Chicago, Illinois, this 5th day of December 1984.