Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12394
SECOND DIVISION Docket No. 12111
92-2-90-2-233
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (formerly Chesapeake and Ohio
( Railway Company)
STATEMENT OF CLAIM:
1. That the Chesapeake & Ohio Railroad Company (CSX Transportation,
Inc.) (hereinafter "carrier") violated the provisions of Rules 7 and 158 of
the Shop Crafts Agreement between Transportation Communications International
Union - Carmen's Division and the Chesapeake & Ohio Railroad Company (CSX
Transportation, Inc.) (revised June 1, 1969) and the service rights of Carmen
D. Grisson, W. Bowery, P. Curran, F. Lavenia, M. Davis and J. Lowery (hereinafter "claimants") when the carrier did not allow the claimants to accompany
the wrecking outfit when returning from derailments.
2. That, accordingly, Carmen D. Grisson, W.. Bowery, P. Curran, F.
Lavenia and M. Davis are entitled to be compensated for six (6) hours each at
the applicable rate of time and one-half. Further, that Carman F. Lavenia is
entitled to be compensated for four (4) hours at the pro rata rate and six (6)
hours at the time and one-half rate and Carman J. Lowery is entitled to be
compensated for three (3) hours at the pro rata rate.
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 facts herein are not in dispute. As a result of a derailment
occurring at the Bremo Bluff Virginia Power Station, the Richmond Wrecking
outfit and the Claimants were sent to the site on April 24, 1987 at 7:00 A.M.
At approximately 11:30 P.M., the Claimants were returned to their home point
Form 1 Award No. 12394
Page 2 Docket No. 12111
92-2-90-2-233
in Carrier trucks, although the wrecking outfit did not return until 5:30
A.M., April 25, 1987. As part of the Claim, the Organization seeks six hours'
pay for the Claimants, under Rule 158 which reads as follows:
"When wrecking crews are called for wrecks or
derailments outside of yard limits, a sufficient
number of the regularly assigned crew will accom-
pany the outfit. For wrecks or derailments within
yard limits, sufficient carmen will be called to
perform the work." (Emphasis added)
The issue here is whether the direction to have the crew "accompany
the outfit" applies to the return from the wreck site. This is not a case of
first impression, and Awards have variously sustained or denied such requirement, occasionally depending on the particular circumstances. Of the Awards
presented for review by the parties, the Board here decides to follow the
latest determination as found in Second Division Award 9708, which stated:
"There are really two issues involved in this
case. Does the wrecking crew have the right to
accompany the wrecker on the return trip and . . .
if they do, is the claim justified under the circumstances? In applying the divergent views reflected in the various cases cited to us, it is
concluded first that generally speaking under the
instant contract the employees at Birmingham have
had a right to accompany the wrecker on the return
trip. Further, if they do not accompany the wrecker they are entitled to be paid until the wrecker
arrives.
[I]t is the judgment of the Board that the
instant facts are close in nature for the purposes
of realistic application of the relevant rules to
the cases cited by the Organization. These cases
appear to be the prevailing view among neutrals who
have been faced with such difficult questions."
The Carrier cites Second Division Award 7664 _on the property which
denied pay under similar circumstances. However, that Award simply relied
on failure of the Organization to show "established past practice", without
further examination of the Rule, as was undertaken in Award 9708.
The remainder of the Claim concerns double time pay for service on a
second rest day. The Carrier contends that the wrecking service constituted
an "emergency", negating the entitlement for double time pay. The Board finds
the Carrier's determination to be reasonable as applied to these circumstances. See Second Division Award 7246.
Form 1 Award No. 12394
Page 3 Docket No. 12111
92-2-90-2-233
The Claim will be sustained solely to the extent of six hours at the
pro rata rate of pay, since the Claimants were not required to perform work
during the hours claimed.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J. Wr - Executive Secretary
Dated at Chicago, Illinois, this 15th day of July 1992.
vle
CARRIER MEMBERS' CONCURRING AND DISSENTING OPINION
TO
AWARD 12394, DOCKET 12111
(Referee Marx)
The Majority concurred with the Carrier's determination that
the involved wrecking service constituted an "emergency," thus
negating entitlement to double time pay.
In addition, the Majcrity correctly pointed out that the issue
was whether the language "accompany the outfit" applies to its
return from the wreck site.; and, moreover, that this was not a case
of first impression. Unfortunately, however, they went on to
selectively rely upon passages in Second Division Award 9708, an
Award rendered on a different property and stated that they elected
to follow that Award.
CSX had appropriately relied on Second Division Award 7664
which was rendered on the involved property (Chesapeake and Ohio
Railway Company) and interpreted the same Rules with the same
Organization. The Majority cavalierly rejected Award 7664 because,
in the Majority's stated view, the Organization had failed in Award
7664 to show "established. past practice."
Examination of the foregoing logic employed by the Majority in
Award 12394 reveals it to be patently faulty, because in relying on
only part of Award 9708 the Majority ignored the very foundation
upon which that decision was based. In Award 12394 the Majority
quoted from the same paragraph right up to, but not including, the
following pivotal reasoning that underpins Award 9708:
"The Organization has claimed that this is the manner in
which the Agreement has always been applied, at
Birmingham. There is no response in the record by the
Carrier on this pcint. Thus, in this respect, the
Dissent to Award 12394
Page 2
instant case is distinguished from at least Second
Division Award 7664." (Emphasis added)
Here we see a Majority intent upon relying on Award 9708, but
ignoring the fact that the Carrier involved therein made no
response to the Organization's claim of past practice and ignoring,
as well, that such lack of response distinguished that case from
Award 7664. If the Majority were inclined to rely on Award 9708,
they should have relied on the entire Award and not merely selfserving passages. Had they done so, it is apparent Award 12394
would have reached the same conclusion as Award 7664.
Award 7664 adhered to the settled principle that if the Rule
is silent or not clear, the Organization has the burden to
establish by proof or competent evidence that past practice
supports its claim, concluding:
"Insofar as the return trip to Saginaw is concerned, the
Rule does not offer the same clear interpretation. It is
thus incumbent upon the Organization to show that
established past practice has been that the Crew so
accompany the equipment; this has not been accomplished
on the record."
Thus, the claim for not being permitted to accompany the wrecker
outfit on its return trip from the wreck site was denied by Award
7664 for failure of the organization to show that "established past
practice" supported the claim.
The on-property record in Award 12394 demonstrates that the
Organization again failed to support its claim. The same
Organization, which could not prove that past practice on the
Dissent to Award 12394
Page 3
Chesapeake and Ohio Railway Company supported its claim in Award
7664, could not do so in Award 12394.
At no time on the property did the Organization even allege,
much less prove, that the: Carrier had ever permitted a wreck crew
to accompany the wrecker outfit on its return trip from the wreck
site or had ever paid a wreck crew for not being permitted to do
so. At page 7 of its Submission, the organization asserts, for the
first time in the histor~7 of this dispute, that:
"It is the Employee:' position that the historical past
practice and recognized application of this Rule and
proper interpretation thereof, has always recognized the
right of the Carmen to accompany the outfit during
derailments and the language as contained within the
provisions of Rule 158 are clear and unambiguous with
regard to that matter." (Emphasis added)
No rational basis exists for concluding that the above quoted
portion of the Organization's Submission constitutes proof of past
practice. Ironically,
irL
the very next paragraph of its Submission
the Organization actually relied upon Award 7664 which had
previously denied its 1976 claim that employees should be permitted
to accompany the wrecker outfit on its return trip.
The foregoing demonstrates that in Award 12394, no proof of
past practice was shown by the Organization which would support the
decision reached by the Majority. The Majority clearly recognized
the failure of the Organization to show "established past practice"
in Award 7664 and should also have recognized that failure in Award
12394. The Majority, in its poor attempt to. distinguish Award
Dissent to Award 12394
Page 4
7664, actually signaled the basis why Award 7664 should have been
followed.
Third Division Award 10911 sets forth the fundamental rule
applicable in situations such as this:
"When the Division has previously considered and disposed
of a dispute involving the same parties, the same rule
and similar facts presenting the same issue as is now
before the Division the prior decisions should control.
Any other standard would lead to chaos." (Emphasis
added)
However, in disregard for precedent on the property and
settled labor relations, the Majority issued an Award that no one
should follow.
0 &-
&
M. C. Lesnik
R. L. Hicks
M. W. Fin erhut
P. V. Varga