Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12321
SECOND DIVISION Docket No. 12286
92-2-91-2-116
The Second Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Brotherhood Railway Carmen/Division of TCU
PARTIES TO DISPUTE:
(Duluth, Missabe and Iron Range Railway Company
STATEMENT OF CLAIM:
1. That the Duluth, Missabe & Iron Range Railroad Company violated
the terms of our current agreement, in particular Rule 65(b).
2. That, accordingly, the Duluth, Missabe & Iron Range Railroad
Company be ordered to compensate Carmen and Assistant Wrecking Foremen J.
Maker, C. D. Carlson, D. J. Wayt, Carman and Wrecking Engineer V. R. Ophus,
and Carman and Assistant Wrecking Foreman W. D. Erickson in the amount of
seventeen (17) hours each at the time and one-half (1.5) rate for the dates of
February 20 and 21, 1990 on account of the Duluth, Missabe & Iron Range Railroad Company failing to keep the crew at the derailment site at Wayman,
Minnesota near Hoyt Lakes, Minnesota, until the derailment work was completed.
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 relevant facts leading to this claim are not in dispute. On
February 20, 1990, a number of loaded pellet cars derailed at Wyman,
Minnesota. The Carrier's Carmen worked at the site of the wreck from approximately 11:30 A.M. until released at 4:00 P.M. The outside contractor worked
from 9:30 P.M. on February 20 until 1:30 P.M. on February 21, for a total of
16 hours (not 17, as claimed). Therefore, after the Carmen were released, the
contractor remained at the wreck site to complete the work. The basic issue
is whether the Carmen had an entitlement, pursuant to Rule 65, to remain at
the wreck site until all wrecking work was completed. Rule 65, in pertinent
part, reads:
Form 1 Award No. 12321
Page 2 Docket No. 12286
92-2-91-2-116
"RULE 65
Wrecking Crews
(a) Regularly assigned crews, including wrecking
engineer and assistant wrecking engineer, will be
composed of carmen and helpers where sufficient men
are available and will be paid for such service under
Rule 10
....
(b) When wrecking crews are called for wrecks or
derailments outside of yard limits, a sufficient
number of the regular assigned crew will be called.
For wrecks or derailments within yard limits,
sufficient carmen will be called to perform the
work."
The Board, after careful review of the record and the various Awards
relied upon by both parties, finds in favor of the Organization. Given the
particular circumstances in this case, the Carrier's use of an outside
contractor was not an abuse of its discretion. However, as we construe the
language of Rule 65 (b), the Carrier erred when it relieved its Carmen.
With respect to the question of damages, we again follow a long line
of Awards that have addressed this issue under similar circumstances and have
held that pay for work not actually performed shall be at the straight-time
rate. Accordingly, Claimants are entitled to 16 hours at the pro rata rate of
pay.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J.
RIO,-
Executive SecrKary
Dated at Chicago, Illinois, this 20th day of May 1992.