Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10973
SECOND DIVISION Docket No. 10046
2-BN-CM-'86
The Second Division consisted of the regular members and in
addition Referee John J. Mikrut, Jr. when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern Railroad violated the terms of the
current agreement, particularly Rules 27(a), 83 and 86, when they retained M.
L. Hulcher equipment and employees to complete wrecking service September 30
through October 1, 1980.
2. That accordingly, the Burlington Northern Railroad be ordered to
additionally compensate Vancouver wrecking crew Carmen D. J. Washburn, W. H.
Evans, E. S. Schulte, D. V. DeLong, R. E. Stewart and C. Hathaway in the
amount of thirty-two (32) hours' pay each, at the wrecking service rate of
time and one-half (1 1/2) as claimed for service on September 30, 1980 through
October 1, 1980.
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.
Claimants are members of Carrier's regularly assigned Vancouver,
Washington, wrecking crew.
On September 16, 1980, seventeen (17) freight cars derailed near
Woodland, Washington. In response, Carrier dispatched both its Vancouver and
Seattle wreckers and crews, and also contracted for additional equipment and
employes from M. L. Hulcher Company, an outside contractor.
Form 1 Award No. 10973
Page 2 Docket No. 10046
2-BN-CM-'86
After the main line had been cleared of damaged equipment and
reopened to train traffic but before the needed wrecking work had been
entirely completed, all three (3) wrecking outfits and crews were relieved
from service and returned to their respective home stations. Carrier's
Vancouver crew was released on September 18, 1980. Twelve (12) days later, on
September 30, 1980, the rerailing of the remaining cars commenced using only
the Seattle derrick crew and Hulcher's equipment and employes. This force
worked for an additional fourteen (14) hours on the date in question.
Carrier contends that Hulcher's equipment was used both in the first
and second phases of the disputed rerailing because the Contractor possessed
off track equipment which could perform the rerailing more efficiently. Unneeded for the remaining work which recommenced on September 30, 1980, the
Vancouver crew and derrick remained at their home point.
Organization contends that Carrier erred in the instant dispute by
not calling the Vancouver wrecking crew on September 30, 1980, in order to
complete the rerailing work. In support of this contention, Organization
argues that Carrier's action violated Rule 27(a) - Assignment of Work, Rule 83
- Classification of Work, and Rule 86(b) - Wrecking Crews. The pertinent
parts of said Rules, according to Organization, are as follows:
"Rule 27(a) -- None but mechanics or apprentices
regularly employed as such shall do mechanics'
work as per the special rules of each craft
...."
"Rule 83 -- Carmen's work shall consist of building,
maintaining, dismantling,
...
and all other work
generally recognized as Carmen's work."
"Rule 86(b) -- When wrecking crews are called for
wrecks or derailments outside of yard limits, the
regularly assigned crew will accompany the outfit.
For wrecks or derailments within the yard limits,
sufficient carmen will be called to perform the work."
In an effort to support its basic theory that once a wrecking crew is
called, all of the work involved in clearing the site belongs to the Carmen's
craft, Organization cites a number of Second Division Awards which this Board
finds to be inapplicable given the facts of the instant case as presented.
Specifically, Award 1298 deals with a completely different wrecking Rule which
was applicable to a particular factual situation which existed almost forty
(40) years previously; Award 6845 recognized the right of the crew to
"accompany" the derrick, and, in the instant case, the Seattle crew did
perform this function; Award 6703 limited the reach of that decision
("...
on
this property") to the Illinois Central Railroad; and Award 6030 pertains to
in yard wrecks -- a distinction of merit, since, in the instant case, we are
dealing with a derailment which occurred outside of yard limits.
Form 1 Award No. 10973
Page 3 Docket No. 10046
2-BN-CM-'86
Carrier counters organization's basic contention by citing numerous
Board Awards which establish that absent any specific contractual language,
wrecking work outside of yard limits does not belong exclusively to the
Carmen's craft (emphasis added by Board). Moreover, Carrier also cites Second
Division Award 8106 wherein it was held that, "Carrier was within its rights
to use the independent contractor because the contractor could provide the off
track equipment not available to the Carrier." This very same condition was
in existence in the instant case and Organization has not offered any probative evidence whatsoever to disprove Carrier's assertion in this regard.
Finally, Carrier, citing Second Division Award 7979, correctly states
Board precedent regarding the applicable test which is to be used in cases
involving the assignment of wrecking crew work in situations similar to that
involved herein. In that Award, Referee Cushman held that absent any specific
contractual language which would otherwise limit Carrier's action, Organization can only successfully challenge Carrier's decision to use an outside
contractor by proving that Management's decision
"...
was arbitrary, capricious, discriminatory or an abuse of managerial discretion
...."
Rule 86(b)
referenced previously hereinabove only provides that Carrier's wrecking crew
will accompany the derrick when called (emphasis added by Board). This Rule,
even with a combined reading of Rules 27(a) and 83, does not grant wrecking
work to the Carmen's craft in situations involving outside of yard limits
derailments. Moreover, Carrier's decision to use the Hulcher Company's off
track equipment was not shown by Organization to be an abuse of Managerial
discretion; nor was it shown that Carrier violated any of the specific provisions of the applicable Collective Bargaining Agreement, or acted in an
arbitrary, capricious or discriminatory manner.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 10th day of September 1986.