Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10478
SECOND DIVISION Docket No. 9623
2-KCS-CM-185
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
( Brotherhood Railway Carmen of the United States and
( Canada
Parties to Dispute:
( Kansas City Southern Railway Company
( Louisiana & Arkansas Railway Company
Dispute: Claim of Employes:
1. That the Kansas City Southern Railway Company-Louisiana and Arkansas
Railway Company violated the agreement between the Kansas City
Southern Railway Company-Louisiana and Arkansas Railway Company and
the Brotherhood Railway Carmen of the United States and Canada,
effective April 1, 1980 and the Railway Labor Act, when it failed to
pay Carmen R. G. Stouder and Carman Charles Ramsey each eight (8) hours
pay at the pro rata rate for the date of April 4, 1981, account outside
contractor loading and securing car B&O 603643 (hopper) on flat car
MTTX 650935 in Reserve Yard.
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.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
A derailed freight car was loaded and secured onto a flat car by an outside
contractor at the Carrier's Reserve Yard, Reserve, Louisiana. The Claimants are
employed at New Orleans, approximately 20 to 30 miles from Reserve Yard. There
are no Carmen assigned at Reserve Yard.
The Organization argues that Rule 75 was violated when the outside contractor was employed and did not use Carmen in the ground crew. The Organization claims that the Claimants, available for such work, should have been
called.
Rule 75 arose from National Mediation Agreement dated December 5, 1975,
which included Article VII - Wrecking Service. The Rule reads as follows:
Form 1 Award No. 10478
Page 2 Docket No. 9623
2-KCS-CM-185
"RULE 75
Wrecking Crews
(a) Regularly assigned wrecking crews, including the wrecker
engineer will be composed of carmen, and will be paid for such service
under Rule 9.
(b) When needed, men of any class may be taken as additional
members of wrecking crews to perform duties consistent with their
classification.
(c) When wrecking crews are called for wrecks or derailments
outside of yard limits, the regularly assigned crew will be used. For
wrecks or derailments within yard limits, sufficient carmen will be
called to perform the work.
(d) Meals and lodging will be provided by the Company while crews
are on duty in wrecking service.
(e) 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 September 25, 1964.
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 work."
In its argument, the Organization emphasizes that the adoption of Rule 75
makes reference to disputes (and resulting awards) prior to 1975 without
precedential value. The Organization places special reliance on the following
portion of Rule 75:
"(b) When needed, men of any class may be taken as additional
members of wrecking crews to perform duties consistent with their
classification."
Form 1 Award No. 10478
Page 3 Docket No. 9623
2-KCS-CM-185
The Carrier and the Organization referred to numerous awards, both prior
and subsequent to 1975,
concerning the
claimed requirement to use Carmen in
connection with
services of outside contractors. A11 of these, however, refer
to the use of Carmen who are members of wrecking crews. Some of these cases
concern whether or not a wrecking crew in fact existed at the time of the
incident, or whether such wrecking crew was "readily accessible".
The difficulty here is that the Organization offers no evidence that the
Claimants were members of a wrecking crew, at New Orleans or elsewhere. Rule 75
is subject to a variety of interpretations covering diverse situations, but the
underlying common theme is the extent of obligation of the Carrier to employ
wrecking crews in particular and not Carmen in general. Even paragraph (b) of
the rule refers to use of "men of any class" to be used as "additional members
of wrecking crews". No Carrier wrecking crew was employed in the incident here
under review. Paragraph (e) details the relationship between outside contractors
and use of wrecking crews.
Indeed, the only use of "Carmen" in Rule 75 is in the oft-interpreted second
sentence of Paragraph (c),~but this refers only to wrecks or derailments within
yard limits, which is not the situation here.
Rule 75 does not support the claim of the Claimants, who were not shown to
be wrecking crew members. In addition, there is no other basis to show why
Carmen based in New Orleans should have been called to assist an outside
contractor employed in rerailing at Reserve Yard.
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 17th day of July 1985.