Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11132
SECOND DIVISION Docket No. 11133
2-SOO-CM-'87
The Second Division consisted of the regular members and in
addition Referee Raymond E. McAlpin when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Soo Line Railroad Company
Dispute: Claim of Employes:
1. That under the current agreement the Soo Line Railroad Company is
in violation of Rules 27, 28, 94 and 98 of the Shops Craft Agreement, as
amended, when Carman W. Fish, the assigned Shoreham Shops Wrecker Engineer,
was not allowed to work his bulletin position to operate the Carrier's wrecker
to assist the assigned wrecker crew members who were called to rerail NAI3X
60418 on March 13, 1984 within yard limits. Instead the Soo Line Railroad
Company secured an outside contractor's mobile wrecker crane, operator and
groundman to assist the assigned Shoreham Shops wrecker crew members.
2. That accordingly, the Soo Line Railroad Company be ordered to
compensate Wrecker Engineer W. Fish for two (2) hours at straight time and
one-half (1/2) hour at time and one-half at carmen's rate of pay for loss of
compensation of pay on March 13, 1984 for Carrier's violation of the agreed to
rules.
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.
The Claimant, a Carman Wrecker Engineer, in service at the Carrier's
Shoreham Shops, was not allowed to work his position on March 13, 1984 to
rerail a hopper car that had derailed within the Carrier's yard limits. The
Carrier used an outside contractor and the contractor's off rail derrick (as
opposed to the Carrier's wreck. derrick) to rerail the car. In addition, the
Carrier utilized two (argued fry the organization) or three (argued by the
Carrier) Carmen to assist the contractors. The organization argues a violation of Rule 98.
Forth
1
Page 2
Award No. 11132
Docket No. 11133
2-S00-CM-'87
Rule 98 has been revised. Originally, the Rule stated
"When wrecking crews are called for wrecks or
derailments outside of the yard limits, a sufficient number of regularly assigned crew will
accanpany the outfit. For wrecks or derailments
within yard limits, sufficient carmen will be
called to perform the work."
The revised Rule reads as follows:
"1. Wrecking crew will be composed of Carmen,
including Engineer, will be assigned by
bulletin, and will be paid under Rule 10.
2. When a wreck occurs outside yard limits,
equipment designated by the Carrier will
be used, and a sufficient number of the
regularly assigned crew will be called
to accompany such equipment.
3. In case of emergency, should the Carrier
use the equipment of a contractor (with or
without operators) a sufficient number of
qualified Carmen will be used as follows:
(a) If a regularly assigned wrecking crew
is located at a point nearest to the scene
of the wreck, a sufficient number of the
regularly assigned wrecking crew will be
called
to
work with the contractor as
groundmen. If, after the Carrier has
assigned all its regularly assigned wrecking crew members and additional groundmen
are needed, additional Carmen from any
location determined by the Carrier, will
be called and used as additional groundmen.
(b) If at the
point
nearest the'scene of
the wreck, the Carrier does not have a
regularly assigned wrecking crew, but has
Carmen employed, the Carrier may dispatch
a sufficient number of qualified Carmen
from that point in
lieu
of calling a wrecking crew.; If a sufficient number of Carmen
cannot be obtained fran groundmen;_consistent with service requirements,~Carmen from
other points will be used.
Form 1
Page 3
Award No. 11132
Docket No. 11133
2-SOO-CM-'87
4.
For wrecks or derailments within yard
limits, a sufficient number of Carmen will
be called to perform this work.
When the Carrier elects to call a contractor
for any wreck, it is understood that the
necessary wrecking crews and/or Carmen, as
nearly as possible, will be called so as to
arrive at the wreck at about the same time
as the contractor's crews.
6. This rule shall not be construed to prevent
train or engine crews from rerailing cars
and/or locomotives with frogs and/or blocking which is immediately available to the
train or engine crew."
The organization argued that Rule 98 calls for a sufficient number of
Carmen to be called for wrecks within the yard. Carrier employees could have
performed the work faster than the contractor. They noted the contractor was
called at 10:15 A.M., and the work was not finished until 2:00 P.M.; therefore, cost was no factor, and there was no emergency. The organization cited
numerous Awards in favor of the organization rendered since the revision of
Rule 98.
The Carrier argued it has the right to decide to use its own equipment or not and that Rule 98 only covers crewing and cited Awards in support
of that contention. The Carrier noted it used three Carmen and that the Rule
states that the entire wreck crew need not-be used, and Section 98.5 specifically allows the Carrier to use outside contractors. The Carrier agreed that
no emergency existed but stated if the wrecking equipment is not used, then
the Wrecking Engineer need not be called. The Carrier is under no obligation
to call the entire crew. The Carrier stated that it could spot a car immediately if it used the off rail. derrick. Finally, Award 10963 and its Dissent
were provided to the Referee. In this Award, the Board found that due to the
non-exclusivity of the work to the Carmen's craft and the practices that
existed, the Claim in that case was denied.
Upon complete review "of the evi,denqe., the Board finds that Rule 98,
Section 4 is controlling. The Board.notes the rerailing did not occur as
provided in Section 98.6. In._t:his case,. the derailment was within yard
limits; therefore, a sufficient number
of
Carmen must be called to perform
this work. The Carrier chose.t:o,utilize...,a.cQptractor's services and contractor's equipment, which isJ<:onsistept..with Rule 98.5. The question
remains, did the Carrier have i:he obligaton,to~attempt to call out the
Claimant consistent with the ,language
jr1~Rul,o
.94_.,.(Classification of Work) and
Section 98.5 of the Controllan<j .~greemen~_...~ The ,Board finds that the language
in the Controlling Agreement iayc~learr,and_,that the Claimant should have been
given, under that language, tho opportunity to perform this work. Clearly,
~r
Form 1 Award No. 11132
Page 4 Docket No. 11133
2-SOO-CM-'87
from the record the Carrier did not offer the Claimant that opportunity.
Whether or not the Claimant would have worked is immaterial. The Carrier
should have made the offer, which it did not. A sufficient number of Carmen
were not called in this instance. Therefore, the Claim will be sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J Wer - Executive Secretary
Dated at Chicago, Illinois, this 21st day of January 1987.
CARRIEP, MEMBERS' DISSENT
TO
AWARD 11132, (DOCKET 11133)
Referee McAlpin
There is a maxim that this Board should not render a decision
that requires the parties to engage in futile activity. The decision
visited upon the parties here has ignored reality and the contractual
rights of the Carrier under the Agreement.
It is subscribed by the Majority that:
a. There was a derailment within yard limits and that Rule
98(4) governed;
b. That under Rule 98(5) Carrier did have the right to use
"outside contractors";
c. Claimant is a derrick engineer, and has consistently re
fused to perform any other work. See Second Division
Awards 8395, 10974 and 10995, involving the same individual;
d. Members of the wreck. crew were used as groundmen.
While Second Division Award 10963, cited by the Majority, was
not on all-fours with this dispute, it did cite Award 10111, involving the
same parties, which concluded that "Rule 98 contains no language that specifically states that all re-railing work is exclusively reserved to the
Carmen". See also Second Division Award 10744 between these same parties
in this regard.
Also, Award 10963 cited Award 10111 with approval that there had
been a long practice, confirmed by Awards of this Board, that had upheld
the Carrier's position prior to the 1980 contract change, and that:
- CARRIER MEHffiERS' DISSENT TO
_ AWARD 11132 (DOCKET 11133)
"When this language (old rule) is contrasted with Rule 98,
supra, it is evident the old language is almost identi-
cally picked up in Paragraphs 2 and 4."
The Organization Dissented to Award 10963 on the basis that:
" ....there was no mutually accepted practice that allowed Carrier to assign
rerailing work to other than Carmen ...."
If the Carrier had the contractual right to use of an outside contractor under the rule, and the wreck derrick was not needed, where is the contractual requirement that Claimant be offered employment as a groundman.
Rule 98(5), relied upon by the Majority, only says that "necessary
wrecking crews and/or Car-men ...." (emphasis added). The decision does not
point to how the Claimant was necessary in this case.
What purpose is served by concluding that an individual who has consistently refused to work except on the wrecker, be called as a groundman. .The
answer is: none.
We Dissent:
P. V. Varga .
M. W. Finger ut
R. L. Hicks
M. C. Lesnik
J. E. Yost ~/