Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12037
 SECOND DIVISION Docket No. 11659
 91-2-88-2-154
 The Second Division consisted of the regular members and in
 addition Referee Lamont E. Stallworth when award was rendered.

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

STATEMENT OF CLAIM:

 1. That the Boston and Maine Corporation violated the provisions of the controlling Agreement, namely Rules 112 and 113 and the posted and agreed to wreck crew list, on April 9, 1987, April 10, 1987, and April 11, 1987, by not allowing all the regularly assigned wreck crew (four groundmen) to work the derailment at Bangor, Maine.

 2. That accordingly, the Carrier additionally compensate Carman W. E. Fulton eight (8) hours at the time and one-half rate and two (2) hours at the double time rate of pay and Carman J. D. Hartnett eight (8) hours at the time and one-half rate and thirty-three (33) hours at the double time rate of pay for said violations.

 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.

This Claim arose when, on April 8, 1987, an engine derailed on the property of the Springfield Terminal Railway Company at Bangor, Maine. Because the Springfield Terminal Railway Company did not have equipment available which was sufficient to remove the wreck, that company contracted with the Carrier to send its wrecking equipment located at East Deerfield, Massachusetts.
 Form 1 Award No. 12037
 Page 2 Docket No. 11659
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On April 9, 1987, at about 1400 hours, the Carrier's wrecking equipment began its journey from East Deerfield to Bangor. According to the Carrier, the Springfield Terminal Company initially requested the Carrier's equipment only. However, it soon became evident that the Springfield Terminal's employees were unfamiliar with the Carrier's wrecker, and so the Carrier was asked to send a bulldozer operator and crew members to assist. Consequently, the Carrier called the first three carmen on the wreck crew list at East Deerfield, and instructed them to report at 2400 hours on April 9, 1987, for transportation by Carrier vehicles to Bangor. The three carmen who were called for this assignment were C. D. Call, who was assigned to work as a bulldozer operator, and W. E. Godfrey and J. E. Hartnett, who were assigned to work as groundmen.

 The work of clearing the derailment at Bangor was completed late on April 10, 1987. Carmen Call, Godfrey and J. E. Hartnett then stayed overnight at a Bangor motel and were returned to East Deerfield on April 11, 1987.

 The Organization argues that the Carrier violated Rules 112 and 113 when it declined to send a full wrecking crew, including at least four groundmen instead of just two, to the derailment at Bangor. Rule 112 of the Agreement, in pertinent part, states as follows:








Form 1 Award No. 12037
 Page 3 Docket No. 11659
 91-2-88-2-154

          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 yard limits, sufficient carmen will be called to perform the work."


Since the derailment at Bangor, Maine, was certainly outside the Carrier's East Deerfield, Massachusetts yard, the Organization argues that Rule 113 clearly applied in this case. Further, the Organization points out, Rules 112 and 113 have been construed literally, such that the Carrier must send a full, regular crew with a wrecking derrick whenever the derrick moves outside the yard to clear a derailment. The Organization cites Second Division Awards 5003; 10745; and 11026 all of which indeed stand for that proposition.

 However, the Carrier asserts that Rules 112 and 113 cannot possibly apply to work which occurs, not merely outside a wrecking crew's yard, but off the Carrier's property altogether. The Carrier reasons that such work is not within the Carrier's control and therefore cannot be governed by the Carrier's Agreements. The Carrier cites Second Division Awards 5946; 5857; and 3768.

 Indeed, the Carrier contends that Article VII of the December 4, 1975 Agreement reinforces this point. Article VII provides:

          "When pursuant to rules or practices, a carrier utilizes the equipment of a contractor (with or without forces) for the performance of wrecking service, a sufficient number of the carrier's assigned wrecking crew, if reasonably accessible to the wreck, will be called (with or without the carrier's wrecking equipment and its operators) to work with the contractor. The contractor's ground forces will not be used, however, unless all available and reasonably accessible members of the assigned wrecking crew are called . . . .

                            (Emphasis added)


Article VII has been interpreted to require a carrier which experiences a wreck to call one of its assigned wrecking crews for every contractor it calls to assist in clearing the wreck. See, Second Division Award 9091. The Carrier asserts that it was functioning as a contractor for the Springfield Terminal Railway Company in this case. Therefore, the Carrier's argument goes, the Carrier was barred from having a full crew of its employees accompany the wrecker to Bangor in this case, because Article VII mandated that the Springfield Terminal use its own employees insofar as possible.
 Form 1 Award No. 12037
 Page 4 Docket No. 11659
 91-2-88-2-154
The difficulty with the Carrier's argument is that, in this case, Article VII operated as a limitation on the Springfield Terminal Company only, not on the Carrier. The Springfield Terminal Company was the carrier utilizing the equipment and the forces of a contractor to help it clear the wreckage on its property. Once the Springfield Terminal Company determined that it was justified under Article VII in demanding that the Carrier, as its contractor, supply personnel as well as equipment to assist in clearing the derailment, and once the Carrier opted to comply with that demand, the provisions of Rules 112 and 113 came into play for the Carrier, and the Carrier was bound to follow those Rules unless it secured the Organization's agreement to do otherwise.

 Rules 112 and 113 cannot bind the Carrier to send a crew along with its wrecker when the Carrier has merely contracted the wrecker alone to another employer. However, those Rules are intended to control which of the Carrier's employees, and how many of them, will be sent with the equipment _if the Carrier sends or uses any of its employees. Thus, when the Carrier undertakes to contract not only its wrecking equipment but some of its employees to another carrier, it should consider that its Agreement with the Organization obliges it to send a full crew if it sends anyone at all.

 Accordingly, once the Carrier called carmen to travel to Bangor, it was required to call a full crew, meaning in this case two additional groundmen. Therefore, the. Claim must be sustained insofar as it seeks compensation for the Claimants equivalent to that received by the three carmen who were called, less whatever compensation the Claimants in fact received on the Claim dates.

                        A W A R D


        Claim sustained in accordance with the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest:
        Nancy J. ZIe$krr - Executive Secretary


Dated at Chicago, Illinois, this 1st day of May 1991.

CARRIER MEMBERS' DISSENT

TO

AWARDS 12122 - 12130, DOCKETS 11905, 11913, 11914,

11934, 11936, 11990, 12037, 12116, 12117

(Referee Fletcher)


In 1986, the Contracting Parties entered into a National Agreement providing for a specific rate of pay for those involved in Intermodal Service. The purpose for negotiating such a provision was to enable the railroads to compete with trucks and other modes of transportation handling Intermodal traffic. It was never the intent of the contracting parties that such ability to compete with other modes of transportation would fluctuate on a day to day basis but was to provide a level and stable platform from which the railroads could confront the other transportation modes. In these cases, the Majority has correctly found that Barstow, California, one of nine locations on this railroad performing Intermodal work, was covered by Section 1(b) of Article IV of the November 19, 1986 Agreement. All of the Claimants held positions that were engaged in work in connection with Intermodal equipment and they had been compensated in accordance with Section 2 of Article IV almost two years prior to the filing of the first case here involving December, 1988. The Majority also properly concluded that the language, "preponderantly engaged" does not, "limit employees such as Claimants to work exclusively in connection with intermodal service."


      The only issue in these cases was:


      "...at what point is the Carman no longer working on a position 'preponderantly engaged in work in connection with the operation of intermodal facilities.'"

      While the Majority states as a fact that:

"The Agreement gives us no guidance..." as to how to evaluate "preponderantly engaged" it has nevertheless concluded that such is to be done on a daily basis. This conclusion is wrong for the following reasons.

First, as noted above, there is NO CONTRACTUAL BASIS for such a conclusion. The positions involved were bulletined and were awarded as INTERMODAL POSITIONS having a regular five day work week. As the Majority has noted, "Unless it is demonstrated the work on a particular intermodal position is not somewhat consistent..." (Emphasis added), said position is an intermodal position compensated at the intermodal rate. Therefore, in order to assert entitlement to other than the intermodal rate, it must be demonstrated that the work of a position is sufficiently erratic to warrant it NOT being included under the rubric of "preponderantly engaged." In these cases there is no evidence of any position being shown as being such an erratic position that it was not entitled to be identified as an intermodal position.

Furthermore, the Majority's conclusion that, "when more than half the work day-is spent in connection with intermodal service," identifies an intermodal position, does severe violence to the concept of assigning positions by bulletin in this industry. One example will prove the point. An intermodal worker who spends 3 1/2 hours each work day of his assignment in other than intermodal service is an intermodal worker since, "more than half the work day" is in intermodal service. However, an individual who


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spends the same amount of time on non-intermodal work but only on Monday and Tuesday of the work week is not an intermodal worker on two days of his work week. The same time, effort and work is expended, yet there are two different results. Such is not what the Parties intended and such action certainly does not provide a stable means to compete against the other modes of transportation.

Secondly, on the assumption that these nine claims represent the actual incidence of intermodal workers performing nonintermodal work at this location, we have a total of 51 dates consuming 587 hours, 40 minutes in just over 48 weeks (December 12, 1988 - November 14, 1989 - 240 work days). If just one Carman worked 3 1/2 hours each work day during these same 48 weeks in nonintermodal work he would have expended 840 hours in non-intermodal work for which he would be compensated only at the intermodal rate. It just does not make any rational sense that an individual could work 43% more than the total represented in these nine claims on non-intermodal work and be within the guidelines of these Awards. Yet, these multiple Claimants working far less hours in nonintermodal work are found here to be entitled to the other than intermodal rate.

In Award 12122, involving the largest number of Claimants (13), the largest number of dates claimed (18) and the most time (290 hours) over a six week period (December 12, 1988 - January 20, 1989) we find that the 290 hours claimed is less that 16$ of the time worked by these Claimants (13 Claimants x 8 hours x 18 dates = 1872 hours). If we look at the time worked by these same 13


                          - 3 -

Claimants over the six week claim period (13 Claimants x 8 hours x 5 days/week x 6 weeks = 3120 hours) the total claimed is less than 10$ of the time worked. By any calculation, other than on a daily basis, it is self-evident that Claimants were "preponderantly engaged" in intermodal work and were so engaged not just the majority of the time but the vast majority of time employed. Had the Parties desired to require that the determination of the status of the position being intermodal or not to be made on a daily basis it would have been a simple matter to have so stipulated. However, as the Majority has properly noted, there is no Agreement provision that supports such a conclusion.

Third, the Majority itself has noted the lack of contractual basis for making daily determinations when it acknowledges the need to provide an exception:


      "The Board recognizes that there may be circumstances, due to factors such as traffic patterns, when it is

      appropriate to measure the work over a somewhat longer period of time, e.g., a work week."

Obviously, the recognition, "that there may be circumstances" in which a daily determination would not apply, upholds and confirms the fact that there is no contractual provision to support the conclusion reached in these Awards. Furthermore, what are the traffic patterns that would entitle the Carrier to, "measure the work over a somewhat longer period of time..."? What other circumstances might be "appropriate"? To acknowledge the need for exceptions warrants the conclusion that an evaluation on a daily basis was not the intent of the Parties in negotiating Article IV.


                          - 4 - -

The result made in this matter is a disposition made on perceived equity and not on any contractual support.

In Award 16 of PLB 4170, involving the application of the intermodal rate, we find the following:


      "If Claimants' positions are not primarily in

      intermodal service, they are not subject to Article IV. In resolving this dispute, we can consider only the

      evidence presented to us. The Carrier has furnished a computer generated report for the fourth quarter of 1988 which shows the number of man hours charged to various functions for each intermodal employee at Inman Yard. According to this report, Claimant Bailey worked 479.7 hours in intermodal equipment repair and 28.3

      hours in shop maintenance. Claimant Tatum worked 388.7. hours in intermodal equipment repair and 8.8 hours in

      ship maintenance ....The Organization, on the other

      hand, has submitted bulletins describing the jobs in question. Because maintaining pig cranes is only one of three duties listed on the bulletin, the

      organization concludes this work constitutes only onethird of the job. In light of the Carrier's more

      precise time records, we cannot accept the

      organizations's conclusion. Based upon the Carrier's records, it is evident that Claimants' jobs are

      primarily in intermodal service." (Emphasis added)

Here, the review was over a thirteen week period; not daily. Again, there is no support either in Article IV of the November 19, 1986 Agreement or in Letter No. 3 for the conclusion that bulletined and assigned Intermodal positions are to be reevaluated and reclassified on a daily basis.

The Majority, in support of its conclusion has noted that this Board historically, "...has examined the nature of an employee's work on a daily bass" and that there is nothing in the 1986 Agreement that would change that view. However, such a conclusion can only be reached if the basic purpose of the Intermodal provisions are ignored. No railroad can compete with other less


                          - 5 -

costly transportation modes when its ability to compete is restricted by an artificially imposed barrier.

The Majority also relies on rules 20 and 38 to support its position of daily review. However, Rule 20 applies to the rate of pay for the filling of vacancies and there is no dispute that these cases DO NOT INVOLVE THE FILLING OF A VACANCY. It is a fact of record that the Claimants were assigned at the time to intermodal positions by bulletin and assignment. There was no issue raised concerning the filling of vacancies. And certainly there is no dispute that Claimants properly could be required to perform nonintermodal work so long as they were "preponderantly engaged" in intermodal work. Thus, there were no other positions nor were there any vacancies to be filled. Concerning Rule 38, it was NEVER raised on the property but was first raised by the organization in their Submission to this Board. Even though such argument should have been excluded as being in violation of this Board's Circular No. 1, the fact is that the parties by agreement in that rule did make a specific contract provision, detailing when and how there would be a change in the rate paid for welding. The Majority has noted the fact here that there is NO SUCH RULE PROVISION in Article IV.

Finally, it was the Organization that asserted a violation of Article IV on the property. Thus, it was the Organization's burden to prove with substantial evidence that the National Agreement adopted on November 19, 1986, DID PROVIDE for the application of the intermodal rate to be made on a daily basis. The Majority has


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correctly concluded that the National Agreement DOES NOT contain such a provision and in fact, the Agreement provides NO GUIDANCE in this regard. The organization's claims should have been denied on their failure to support their claims with evidence. Whatever the Parties meant by the term "preponderantly engaged" it is clear on these records that Claimants, at all times relevant, were "preponderantly engaged" in intermodal service and it was contractually proper to compensate them at the intermodal rate.


      We dissent.


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