Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11350
SECOND DIVISION Docket No. 11135
2-S00-CM-'87
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein 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 on February 22, 1984, the Soo Line Railroad Company secured the
services of an outside contractor's equipment and operator from Eau Clair,
Wisconsin to assist four assigned Shoreham wrecking crew members to load
derailed cars from a previous derailment at Chippewa Falls, Wisconsin outside
yard limits.
2. That accordingly, the Soo Line Railroad Company be ordered to pay
Carman W. Fish, Shoreham Shops assigned Wrecker Engineer, eight (8) hours at
straight time and six and one-quarter (6 1/4) hours at time and one-half
carmen's rate of pay for loss of compensated pay when he was denied his
contractual right to work his bulletined position as the assigned Shoreham
Shop Wrecker Engineer.
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.
Claimant is the assigned Wrecker Engineer. He operates the Carrier's
wrecker at the Shoreham Shop.
On February 22, 1984, Carrier used an outside contractor's equipment
and operator to assist the assigned wrecking crew to pick up and load derailed
wrecked freight cars onto flat cars, which were left from a previous derailment at Chippewa Falls, Wisconsin. Trackage right of way was open to traffic
and no emergency existed.
Form 1 Award No. 11350
Page 7_ Docket No. 11135
2-S00-CM-'87
The Organization asserts that Carrier violated Rules 27, 28, 94 and
98 of the controlling Agreement. To the Organization, wrecking work was per- -
formed and Claimant should have been assigned to perform the work. We do not
agree. The central issue in this case is whether or not the Carrier has the
right to determine the equipment necessary in emergency or non-emergency
situations. Based on a careful review of the record evidence in its entirety,
we must conclude that Management had the right in the instant case to deter
mine whether to use an outside contractor. Rule 98, relied upon by the
Organization in support of its Claim, provides for the use of the Carrier's
own wrecking crews and equipment if the Carrier elects to do so; if Carrier
chooses not to, it can utilize the equipment of an outside contractor. Rule
98 stipulates the terms and conditions governing the assignment and use of
Carriers wrecking crews and/or Carmen; it does not grant the exclusive right
to perform the wrecking service. The Agreement does provide in Rule 94 that
Carmen have the exclusive right to operate Carrier's wrecking equipment, if
Carrier designates this equipment to be used, but the Carrier retains the
right to exercise its discretion and judgment to determine the need for con
tractor's equipment in the first instance. This principle has been recognized
in numerous Awards. See, e.g., Second Division Award Nos. 8395; 8235; 6757;
10744; 10974. As stated in Second Division Award 6757:
'.
. . This Board has rendered many Awards dealing
with the problems of interpreting rules concerning
wrecking service . . .' In Award 6257 we reviewed
at length a number of the Awards in which the
criteria to be applied are clearly and definitively
_w
delineated. (See Award 6177 (Simons) and Awards
cited therein; the lengthy quotation from Award
1757 (Carter); and the most significant statements
in Award 4190 (Anred). Although, Award 6257
sustained the claim therein because of the specific
facts pertaining therein; it states that we find no
warrant to 'disturbing the basic concept underlying
the . . . cited Awards . . .' The key facet
applicable to the instant claim
'.
. . the
determination of the need for a wrecking crew
involves management discretion and judgment . . .
Carrier's decision can successfully be challenged
before this Board only on the ground that it was
arbitrary, capricious, discriminatory or an abuse
of managerial discretion . . . (Award 4190) (empha
sis supplied)'"
In this case, Carrier determined that the contractor's mobile equipment was essential to the efficient and expeditious cleanup of the derailment.
There is no evidence that Carrier failed to use a sufficient number of Carmen
or that it abused its discretion in employing the outside contractor in the
context it did. Accordingly, we will not interfere with the Carrier's managerial discretion.
Form 1 Award No. 11350
Page 3 Docket No. 11135
2-S00-CM-'87
A WAR D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
e~
Z'
Nancy J pier - Executive Secretary
Dated at Chicago, Illinois, this 30th day of September 1987.