Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11204
SECOND DIVISION Docket No. 10949
2-AT&SF-CM-'87
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(The Atchison, Topeka and Santa Fe Railway Company
Dispute: Claim of Employes:
1. That the Atchison, Topeka and Santa Fe Railway Company violated
the controlling Agreement, as amended, particularly Rule 105-2, when they
failed to call the full crew when the wrecking derrick outfit was ordered for
service at a derailment outside of the yard limit.
2. That accordingly the Carrier be ordered to additionally compensate
Carman I. D. Kingsley in the amount of sixteen and eight-tenths (16.8) hours
at the applicable straight time rate of pay for violation of December 12, 1982.
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 mobile crane was dispatched outside the yard limit to Arkansas
City, Kansas, on December 12, 1982 to rerail two (2) freight cars and to
replace a trailer on one (1) of the flat cars.
From its home point in Wellington, Kansas, the mobile crane is a
bulletined position for three (3) regular assigned and one (1) relief crew
members.
It is undisputed that the mobile crane and crew perform a variety of
services basic to both emergency road service work and wrecking service. The
mobile cranes are used almost exclusively to perform emergency road service
for efficiency purposes. Therefore, everytime a mobile crane is used, it is
not for wrecking service and the number of assigned crew members varies
according to the type of work performed.
Form 1 Award No. 11204
Page 2 Docket No. 10949
2-AT&SF-CM-'87
There is no dispute that the type of work performed was wrecking -
service. Carrier assigned one Cayman, headquartered at Arkansas City, who is
not a regular assigned member to crew.
The issue is whether the mobile crane constitutes a wrecking derrick
outfit as contemplated in Rule 105, paragraph (b)2, with respect to manning of
the mobile crane. Rule 105, paragraph (b)2, states in pertinent part:
"When the wrecking derrick outfit is ordered for
service at a wreck or derailment outside of yard
limits, the full crew, if available, will he used.
It will not be necessary for all or any portion of
the regular derrick crew to accompany the wrecking
derrick outfit to the scene of the wreck or
derailment, if other means of transportation is
available and desired by Management; however, no
member of the regularly assigned wrecking crew,
taking into account all other earnings during the
same period, will be paid less than he would have
earned had he accompanied the wrecking derrick
outfit to and from the scene of the wreck or
derailment."
Several years ago a wrecking derrick and mobile crane were in
operation at Wellington. However, the record shows there is no longer a
"wrecker derrick" assigned to this location.
The Organization contends the mobile crane is a wrecking derrick for
the purposes of applying Rule 105-2 when it is used in wrecking service.
The Organization also contends that the nature of the work determines
whether a piece of equipment is used as a wrecking derrick or not. Further,
the Organization contends the severity of the wreck or derailment determines
the type of equipment dispatched. The Organization contends it does not
matter whether the regular big on-track wrecker derrick, which is sent on the
majority of big wrecks that require a heavier crane, or the off-track mobile
crane is sent; both are wrecker derricks.
Carrier contends that the term "wrecker derrick outfit" is not a
generic term and, as such, the Rule in question does not apply to the manning
of a mobile crane.
Carrier also contends the application of Rule 105 has heretofore
applied only to wrecking derricks because the two pieces of equipment are
treated as separate entities. In support thereof, Carrier asserts there are
distinct differences between a mobile crane operator and a member of the
derrick crew.
Form 1 Award No. 11204
Page 3 Docket No. 10949
2-AT&SF-CM-'R7
In locations where there is both a wrecking derrick and a mobile
crane, there are differences in the way both positions are advertised.
Positions for manning are bulletined separately. Mobile crane positions have
a position number and wrecking derrick crew positions do not; wrecking derrick
positions are advertised separate and apart from any other position while
mobile crane positions are advertised as combination mobile crane/repair track
Carman positions; members of the wrecking crew are not allowed to bid on
mobile crane positions and vice versa.
Carrier asserts a distinction between the inherent design, capabilities and equipment features of on-track wrecking derricks as opposed to
off-track mobile cranes in arguing that mobile cranes were not intended to
fall within the purview of Rule 105.
Finally, Carrier argues there has been no historical recognition that
wrecking derricks and mobile cranes are considered the same as evidenced by
several Local Agreements and understandings cited.
The Board notes that all of the distinctions presented by Carrier
apply in situations where both a mobile crane and wrecking derrick are
assigned.
In the instant case, the record is replete with evidence that any
understanding or practice existed on the property which considers mobile
cranes when called for wrecking service the same as "outfits." The Board
agrees that the mobile cranes are not "outfits" in the historical sense.
However, in the Board's opinion, it is significant that the wrecking
derrick was removed from the Wellington site several years ago. Although the
record indicates that the mobile crane performs other services, it is apparent
that the mobile crane has been used exclusively in Carrier's wrecking service
for a number of years at this facility. Furthermore, the crew is a regular
crew.
Therefore, the Board is not persuaded that the presence of a wrecking
derrick or assigned wrecking crew solely determines the existence of wrecking
crew assignments. See Second Division Awards 10162 and 10080.
The facts establish the derailment required a full crew to man the
mobile crane to perform wrecking service. It is also undisputed that Claimant, a regular crew member, was available to join the other regular crew
members.
Since the mobile crane is considered suitable for wrecking purposes,
the Board reasons the mobile crane crew did perform the duties of a wrecker
derrick and the entire regular crew should have been assigned.
Accordingly, the Claim will be sustained at the pro rata rate of pay,
in keeping with accepted practice.
Form 1 Award No. 11204
Page 4 Docket No. 10949
2-AT&SF-CM-'87
A WAR D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: _
Nancy J. er - Executive Secretary
Dated at Chicago, Illinois, this 4th day of March 1987.
DISSENT JF CARRIER MEMBERS
TO
- AWARD 1120+, DOCKET NO.
109+9
Referee Stallworth .
The conclusions of the Majority in this case are in serious
error.
A factor which evidently influenced the Majority in its decision
was its incorrect conclusion with respect to the evidence the Carrier presented concerning differences in the way "mobile crane" and "wrecking
derrick" positions have historically been advertised. The Majority stated
that "all of the distinctions presented by Carrier apply in situations where
both a mobile crane and wrecking derrick are assigned".
Some of the evidence (bulletins, written understandings, etc.) presented by the Carrier involved locations at which both a "wrecking derrick"
and a "mobile crane" were 'assigned at the time of the written evidence.
Other evidence presented by the Carrier clearly followed the date that the
"wrecking derrick" was last assigned at that particular location or involved
a location at which there has never been a wrecker assigned.
An even more serious error of the Majority lies in the following:
The Rule involved in this dispute (Rule 105 (b )2) provides that the
full crew is to be used "when the wrecking derrick outfit is ordered for
service at a wreck or derailment ...."
The Organization's allegation was that a "mobile crane" constitutes
a "wrecking derrick outfit" and that, therefore, Rule 105(b)2 was applicable
when utilizing a "mobile crane" for wrecking or derailment work.
The Carrier's response was that a "mobile crane" is not a "wrecking
derrick outfit" and that, therefore, Rule 1C5(b)2 did not apply.
DTS=71 C: CAR-R=R rEXB~_~S TJ
At,LsRJ ILCL, D,--C-=L N',-,1C;Lo
The sole issue b2fcre the Board was whether Rule 1C~"b;2 did or did
not
apply.
The only way that Rule 1C5(b)'-- could be
applicable is if
the
"mobile
crane" constitutes a "wrecking derrick outfit" or iT, in the alternative, by
past PraC,i.1C2 and
und2_St2::d1::;
Cf tti°_s, a "mobile
r"^"~"
has be"
_ '~_.e oar_1_° _ c_____ °___
considered, for pur?esas of a?oli catic:
cf
Rule 1C:-~b;=, as bai-:S,
2
"wTec
derrick outfit .
"The Ma,Cr_tCCr_eCt'ty
CcnCIl:d2d
tact the
ILCC~_2 CL°%°3
art not
OLaL_t3
" has net poi t t any past practice or
in the historical ss
;s2
. T:~e :'.af.orit-r n
ed ,
:'n ':
t':°_
D2LC1~=
~c'le
C:'S«'cL?= 2
crane" tC cons-.__:1C= a w==C_<:^~1::5'b)2
C?rY_C~ CLaT4_"
fCr p'-:r:)r'Scs
C=
a?o~i.
_CatiCC
c^
t ^ .,. l ~ "mobile
crar,
f
_ Rule 1~.5~b~, cr that n_~ _ ',b~ has been applied to ne crews.
The r;crity decisic:: was clearly not based or. a literal interpretation
of Rule 1G5(b;2 cr er_ t'-:e 'r,istcrical application cf that Rule. Rather, to
Majority
decision pres:=bly was based on the fact that a carman holding
seniority at the w-r?ck site was used in lieu of the cla'~ant which, in the
Majority's view, showed that "the deraiLent required a full crew to man the
mobile crane to performs wrecking service". If there were a contractual basis
for the belief that a car-man not assigned to a "mobile crane"
crew
should not
be substituted for a "mobile crane" crew me-,her wfien the "sebile crane" is
used in wz ecking service, by the
Majority's
own admission, that contractual
basis does not lie in Rule 105(b)2.
The Majority has stated that it "is not persuaded that tae presence
of a
wrecking derrick or assigned wrecking crew solely determines the existence
DISSENT CF CARRIER MEMBERS TO
- 3 - AWARD
11X4, DOCKET NC.
10949
of wrecking crew assignments". The fact is that the Rule involved (Rule 105(bj2)
specifically involves a "derrick crew" and further provides that the full crew
will be sent out "when the wrecking derrick outfit is ordered for service at a
wreck or derailment...". There having been no "derrick crew" in existence and
no "wrecking derrick outfit" dispatched on the claim date, there was no con
tractual necessity under this Rule for dispatching the "mobile crane" crew.
The Board is limited to considering only those issues and rules raised
in the formal statement of claim after having been handled in the usual manner
on the property. See, far instance, Third Division Awards 15523,
17512, 1823,
19790,
among others. The Board has no "equity powers" to decide issues on the
basis of some unnamed concept or implied contractual provision. The Majority
has clearly exceeded its jurisdiction.
We Dissent.
.
~/ 4~ 1400~
V. Varga
A4.14W
M. W. Finderhut
r
R. L. Hicks
e.
M. C. Lesnik
7j Yost
NOW