Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11930
SECOND DIVISION Docket No. 11620-'.C
90-2-88-2-142
The Second Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.

(Brotherhood Railway Carmen/Division of TCU PARTIES TO DISPUTE:


STATEMENT OF CLAIM:

1. That the Kansas City Terminal Railway Company violated Rules 71 and 73 of the current working Agreement when on April 24, 1987 they assigned Mike Rocke and Roy Pennington, who are not Carmen, to take the Cline Truck and. rerail Cars TTPX 82521 and TTPX 81310 flat load of lumber that were derailed at Mill Street Yard.

2. That because of such violation, the Kansas City Terminal Railway Company be ordered to compensate Carmen N. J. Hayes, who was available to be called to perform the work, four (4) hours at the overtime rate of pay.

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.



As Third Party in Interest, the International Brotherhood of Firemen and Oilers was advised of the pendency of this dispute, but chose not to file a response with the Division.

A Claim for four (4) hours was filed by the Organization at the Kansas City Terminal on grounds that non-Agreement employees were used to rerail cars. On April 24, 1987, flat loads of lumber TTPX 82521 and 81310 were rerailed at the Carrier's Mill Street Yards by a Sheet Metal Worker and a Laborer. According to the Claim such represented violation of Agreement Rules 71 and 73. The Rules at bar read as follows:
Form 1 Award No. 11930
Page 2 Docket No. 11620-T
90-2-88-2-142
"CLASSIFICATION OF WORK
Rule 71
Carmen's work, including regular and helper
apprentices, shall consist of building, maintaining,
dismantling (except all-wood freight-train cars),
painting, upholstering and inspecting all passenger
and freight cars, both wood and steel, planing mill,
cabinet and bench carpenter work, pattern and flask
making and all other carpenter work in shops and
yards, except work generally recognized as bridge and
building department work; carmen's work in building
and repairing passenger train motor cars; building,
repairing, and removing and applying wooden locomo
tive cabs, pilots, pilot beams, running boards, foot
and headlight boards; tender frames and trucks, pipe
_and inspection work _in connection with air brake
equipment _on freight cars; applying patented metal
roofing, operating punches and shears, doing shaping
and forming, work done with hand forges and heating
torches in connection with carmen's work; painting,
varnishing, surfacing, decorating, lettering, cutting
of stencils and removing paint (not including use of
sand blast machine or removing vats); all other work
generally recognized as painters' work under the
supervision of the locomotive and car departments,
except the application of blacking to fire and smoke
boxes of locomotives in engine houses; joint car in
spectors, car inspectors, safety appliance and train
car repairers; oxyacetylene and electric welding work
generally recognized as carmen's work; _and all other
work now generally recognized as carmen's work."

"WRECKING CREWS

Rule 73






In support of its Claim the Organization presents a statement by one Carman working on this property that: "as long as (this Carman) worked for the K.C.T. Ry the rerailing (of) freight equipment had been Carmen's duties."
Form 1 Page 3

Award No. 11930
Docket No. 11620-T
90-2-88-2-142

In denying the Claim the Carrier states that the rerailing of derailed equipment is not the exclusive purview of Carmen on this property although members of this craft have assisted with this type of work in the past. Correspondence by the Carrier to the Organization under date of February 29, 1988, is pertinent in this respect and is cited here for the record:

"..(the) Carrier has provided the Organization with factual figures for approximately the last 20 years wherein the mechanical department employees (a department which includes Carmen as well as other shop craft employees) re-railed approximately 20% of derailed equipment on the K.C. Terminal. Almost 80% of the derailments logged were re railed by other than Carmen therefore refuting any claims to exclusivity."

A review of the full record in this case shows that Carmen have participated in the rerailment of equipment on this property. The same record does not sup port the conclusion, however, according to substantial evidence criteria, that such work was under the exclusive jurisdiction of Carmen. Substantial evidence has been defined, for arbitral purposes, as such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion" (Consol. Ed.
Co. vs Labor Board 305 U.S. 197, 229).

Claim denied.

Attest:


Dated at Chicago, Illinois, this 29th day of August 1990.

A W A R D

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division