Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10653
SECOND DIVISION Docket No. 10155
2-B&O-CM-'85
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
( The Baltimore and Ohio Railroad Company
Dispute: Claim of Employes:
1. That the Baltimore & Ohio Railroad Company violated the controlling
agreement, specifically Rule 142 and 142 1/2, when they called an
outside contractor, Hulcher Emergency Service, with their equipment and ground forces, to perform wrecking service at Troy, Ohio
in lieu of the Cincinnati, Ohio assigned wrecking crew.
2. That the Baltimore & Ohio Railroad Company be ordered to compensate
the members of the Cincinnati assigned wrecking crew as follows:
R. L. Frey, T. Risdon, C. Lambert, A. Mackey, J. Durdsall and L.
Robinson, Jr., in the amount of eleven (11) hours and ten (10)
minutes pay each at the time and one-half rate; L. H. Salmons, in
the amount of ten (10) hours and forty-five (45) minutes at the time
and one-half rate; J. C. Smith in the amount of five (5) hours and
fifty-five (55) minutes 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.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At approximately 6:15 P.M. on October 29, 1981, Train District Run,
Engine 3890 derailed five cars at Troy, Ohio. The Carrier called Hulcher
Emergency Service from Mercer, Pennsylvania, located approximately 236 road
miles from Troy. The Carrier states that the Contractor arrived at the
derailment at 3:30 A.M. October 30, 1981, commenced working at 4:35 A.M. and
was relieved at 9:30 A.M. that same date.
The Organization contends, and Carrier does not refute, that the
Contractor's work force consisted of eight (8) men. The Organization asserts
that the Contractor was relieved at 9:45 A.M., not 9:30 A.M., as contended by
the Carrier.
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Form 1 Award No. 10653
Page 2 Docket No. 10155
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This dispute is controlled by the interpretation and application of Rule
142 1/2, which reads:
"Wrecking Service.
1. 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 air available and reasonably
accessible members of the assigned wrecking
crew are called. The number of employes assigned
to the Carrier's wrecking crew for purposes of
this rule will be the number assigned as of the
date of this Agreement.
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."'
The record sets forth that an "assigned wrecking crew" had been established at
Cincinnati, Ohio. The Board, on the record before it, also finds that a
sufficient number of the Cincinnati wrecking crew was available and reasonably
accessible to the wreck. Accordingly, the issue remaining is the amount of
compensation, if any, due the Claimants.
There was unquestionably lost work opportunity to the Claimants in the
decision to use outside forces to perform work which is reserved to them by
the Agreement (although the parties are not in agreement as to the exact
number of hours). Accordingly, since the Agreement here does not contain
provisions to make an award as advanced by the Organization, we follow the
long line of awards and Court decisions that the breach of the contract, under
the facts and circumstances here, entitles the wronged party to the amount it
would have earned if the breach had not occurred. We are also guided by the
general thrust of decided cases on the property under comparable situations,
particularly Second Division Awards 8766, 9014, 9091, 9712 and 9887, with
respect to the rate of pay. Moreover, while the Board is not unmindful of
Second Division Award No. 9014 concerning that part of its holding that
compensation was due for Contractor time "actually on site", here we do not
find the facts and circumstances precisely on point in this matter. Accordingly, after a complete review and consideration of all the contentions and
submissions of both parties, we embrace the pro rata rate concept, having been
established that this is the measure of work lost. Applying the make whole
principle, we conclude from the record that the Contractor was called at
Form 1 Award No. 10653
Page 3 Docket No. 10155
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approximately 8:00 P.M. on October 29, 1981 and finished at 9:30 A.M., on
October 30, 1981, a total of thirteen (13) and one-half hours. In view of the
foregoing, we sustain the claim as to the number of hours claimed for each
Claimant at the straight time rate, less time worked by each of the Claimants
during the period of time used here for this Award (8:00 P.M. on October 29;
9:30 A.M. on October 30, 1981).
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. I~er - Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1985.
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