Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12038
SECOND DIVISION Docket No. 11660
91-2-88-2-155
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(Boston and Maine Corporation
STATEMENT OF CLAIM:
1. That the Boston and Maine Corporation (hereinafter referred to as
the Carrier) violated the provisions of the controlling Agreement, namely
Rules 112 and 113, on April 9, 1987 by not allowing the regularly assigned
wreck crew to accompany the East Deerfield wrecker to a derailment at Bangor,
Maine.
2. That accordingly, the Carrier additionally compensate Cayman D.
Call (hereinafter referred to as the claimant) eight (8) hours at the time and
one-half rate and one (1) hours at the double time rate of pay, Cayman W. E.
Godfrey (hereinafter referred to as the claimant) six (6) hours and forty-five
(45) minutes at the time and one-half rate and one (1) hours at the double
time rate of pay, and Cayman J. E. Hartnett (hereinafter referred to as the
claimant) eight (8) hours at the time and one-half rate and one (1) hour 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.
Parties to said dispute waived right of appearance at hearing
thereon.
This Claim arises from the same derailment, occurring on April 8,
1987, which gave rise to Second Division Award 12037 between these parties.
In that incident, an engine derailed on the property of the Springfield
Terminal Railway Company at Bangor, Maine, and the Springfield Terminal
Company, lacking adequate equipment for clearing the wreckage, contracted with
the Carrier to use its wrecker located at East Deerfield, Massachusetts.
Form 1 Award No. 12038
Page 2 Docket No. 11660
91-2-88-2-155
According to the Organization, the Carrier's East Deerfield wrecker
was pulled from the stand at about 0930 hours on April 9, 1987, but, due to
complications, did not depart the East Deerfield yard until about 1400 hours.
A Crane Engineer, was assigned to accompany the wrecker as it departed. A
full wrecker crew was not assigned to accompany the equipment because,
according to the Carrier, the Springfield Terminal Company intially 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 crew members to assist. Consequently,
the Carrier called the first three Carmen on the agreed 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. Claimants were the Carmen
called and sent to Bangor for this work.
In this Claim, the Organization contends that the Claimants should
have been called to depart the East Deerfield yard with the wrecker rather
than being directed to report later and transported separately. The Organization relies on Rules 112 and 113 which provide:
"Rule 112
WRECKING CREW
(c)
(4) Carmen regularly assigned to wrecking crew VW
will accompany the outfit outside of yard limits (as
provided in Rule 113) unless otherwise agreed to
between local supervisor and Local Committee.
Rule 113
MAKE-UP WRECKING CREWS
When wrecking crews are called for wrecks or derailments outside of yard limits, the regularly assigned
crews will accompany the outfit. For wrecks or derailments within yard limits, sufficient carmen will
be called to perform the work."
The Organization argues that Rules 112 and 113 have been construed literally
to require that the Carrier send a regular crew to physically accompany a
wrecking outfit whenever the outfit moves outside its yard to clear a
derailment. The Organization cites several Second Division awards which do
indeed stand for that proposition. However, the Carrier asserts that Rules
112 and 113 do not apply to work which occurs, not merely outside a wrecking
crew's yard, but off the Carrier's property altogether, since such work is not
within the Carrier's control.
Form 1 Award No. 12038
Page 3 Docket No. 11660
91-2-88-2-155
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 rea-
sonably accessible members of the assigned wrecking crew
are called . . . .' (emphasis added)
Since the Carrier was functioning as a contractor to the Springfield Terminal
Company in this case, it reasons that Article VII precluded the use of the
Carrier's forces at the Bangor derailment unless and until the conditions
specified in Article VII were met.
The Board cannot accept the Carrier's position. As we held in Second
Division Award 12037, once the Springfield Terminal Company requested not only
the use of the Carrier's wrecker, but also the assistance of even a partial
crew, the Carrier became obliged under Rules 112(c)(4) and 113 to assign an
entire crew. The direct and unambiguous language of those rules can mean
nothing less. The record reflects that the Carrier sent a Crane Operator,
along with the wrecker thus indicating that the Springfield Terminal Company
requested at least some crew assistance from the Carrier at the very outset.
It follows, from the literal language of the rules and the Interpretation they
have consistently received, that the remainder of the crew, including the
Claimants herein, should have been sent at the same time. Consequently, the
Claimants are entitled to an Award compensating them for the wages they would
have received if they had left the East Deerfield yard for Bangor at 1400
hours on April 9, 1987.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
011
Attest:
Nancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 1st day of May 1991.