Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12112
SECOND DIVISION Docket No. 11887
91-2-89-2-196
The Second Division consisted of the regular members and in
addition Referee George S. Roukis when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM:
1. The Chicago and North Western Transportation Company violated
Rules 58 and 60 of the controlling agreement on October 11, 1988, when they
failed to call Carmen R. J. Harrill and B. W. Lambrecht for a major derailment
which occurred at Fremont, Nebraska on October 11, 1988, and instead utilizied
two Mechanics-In-Charge stationed at Missouri Valley, Iowa, who are not
regularly assigned members of the wrecking crew.
2. That the Chicago and North Western Transportation Company be
ordered to compensate Carmen R.. J. Harrill and B. W. Lambrecht in the amount
of two (2) hours and forty (40) minutes at the overtime rate, and wrecking
incentive pay of $.25, making a total of $57.02 to which they are entitled.
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.
The essental facts of this case are set forth as follows: On October
11, 1988, a derailment involving three freight cars occurred at Fremont,
Nebraska. Berg Corporation was called to rerail these cars and arrived at the
site at 11:00 A.M. It took approximately two hours to complete the rerailing
of said cars and an additional. one hour to load four bad order cars on flatcars. As part of the rerailing work team effort, Carrier called two Mechanics-In-Charge who were employed at Missouri Valley, Iowa. This position is
thirty six miles from Fremont. Claimants were employed as Carmen at Council
Bluffs, Iowa some forty nine miles from the derailment site.
Form 1 Award No. 12112
Page 2 Docket No. 11887
91-2-89-2-196
The Organization contends that Carrier's utilization of the two
Mechanics-In-Charge violated Rules 58 and 60 of the Controlling Agreement and
Item #2 of the February 18, 1976 C&NWT Supplemental Wrecking Agreement. This
provision is referenced as follows:
"In the past, some disagreement on what con
stituted Carmen's work in derailment. This new
provision clearly spells out that wrecking is
carmen's work on other than minor derailments.
The second paragraph of Rule 127 was retained
and reads as follows: 'This does not preclude
using other employes to pick up or clear minor
derailments when wrecking derrick is not used.'
This is interpreted to mean the use of cranes or
side booms in rerailing would be considered the
same as derricks. Further, that employe snch as
Maintenance of Way and trainmen may set frogs or
blocks and handle pulling cables in connection
with frogging or blocking rerailing operation.
Any derailment which could be handled with frogs
or blocks would be considered minor."
More pointedly, it argues that since frogs or blocks were not used to rerail
the three cars, the rerailing was not minor and this necessitated the use of
Carmen. It also disputes Carrier's position that the June 1, 1939 Memorandum
Agreement concerning Mechanics-In-Charge is relevant to those circumstances,
arguing instead that the memorandum does not grant Carrier the authority to
send a Mechanic-In-Charge away from his point of employment and allow him to
perform wrecking work. It cites Second Division Award 9394 as controlling.
Carrier contends that Rule 60 permits the utilization of outside contractors to clear up wrecks or derailments, provided Carrier observes the correlative Carman manning requirements. It points out that under this Rule,
when a contractor merely provides equipment and operators, it is only required
to provide a minimum of two Carmen. If the contractor provides personnel
other than equipment operators, the manning requirement increases. In the
case at bar, Carrier notes that the Berg Corporation provides equipment and
operators, but not groundmen. Consequently, since it was only required to
furnish the groundmen at the Fremont situs and since it had the right under
the interpretative authority of Second Division Award 9974 to use Mechanic-In-Charge in lieu of Carmen to work with the contractor, Carrier maintains
that it fulfilled the requirements of Rule 60. This Award involving the same
parties states in pertinent part:
"There is no demonstrated process to show that wrecking service should as an exception, preclude the use of
Mechanics-in-Charge to fulfull the required complement
of Carmen."
Form 1 Award No. 12112
Page 3 Docket No. 11887
91-2-89-2-196
See Second Division Awards 9976, 10494, 11847 and 11949 also involving the
same parties. Furthermore, Carrier asserts that the distinction between minor
and major derailments as contained in the February 18, 1976 Supplemental Wrecking Agreement is without standing, since there has been no showing that the
Organization's interpretation was agreed to by the "appropriate interpreters"
of the Agreement. It also maintains that under the authority of Second Division Award 9974, et al., Mechanics-In-Charge may be used to perform any
Carmen's work.
In considering this dispute within the context of the cited rules,
and awards, the Board concurs with Carrier's position. In Second Division
Award 11847 involving the same parties and the same adjudicative issue, the
Board held that it was not impermissible to use Mechanics-In-Charge who
covered the same territory where the derailing occurred and who were closer to
the wreck site. We noted in that award the precedent authority of Second
Division Awards 9974, 9976, 10494, 11420 which upheld Carrier's right to use
Mechanics-In-Charge under the conditions of Rule 60, (2)(b). Since the facts
of the instant case fall clearly within the interpretative parameters of the
aforesaid rulings, and since there are no distinquishing circumstances that
would arguably warrant a variant Interpretation, the Board is constrained to
deny the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J.i Executive Secretary
Dated at Chicago, Illinois, this 14th day of August 1991.