Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12408
SECOND DIVISION Docket No. 12258
92-2-91-2-49
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:
(Southern Railway Company
STATEMENT OF CLAIM:
1. That the Southern Railway Company violated the terms and conditions of the controlling Agreement, specifically Rules 9 and 49, when they
relieved Carmen A. Lucas and J. W. Richard of their assignment on the rewheel
truck at a derailment site at Toddville, Georgia on December 2, 1989 at approximately 4:30 p.m.
2. That accordingly, the Southern Railway Company now be ordered to
provide relief by now paying Carmen A. Lucas and J. W. Richard nine and onehalf (9 1/2) hours of pay at the overtime rate, plus one (1) hours' pay at the
pro rata rate of pay.
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.
Claimants charge that Carrier violated the Controlling Agreement,
particularly Rules 9 and 49 when Carrier relieved them of duties at a derailed
situs. Specifically, what occurred was that on December 2, 1989, when Claimants were assigned to a rewheel truck operating as a road truck out of Carrier's Macon, Georgia facility and were repairing two bad order cars at the
Buckeye Cellulose Plant, they were informed by the Macon Chief Dispatcher at
about 12:45 P.M. that their ,services were needed at a derailment located at
McIntire, Georgia. They began their tour of duty at 7:00 A.M. However, at
about 1:30 P.M., when the Chief Dispatcher called again, he instructed them to
proceed instead to a 14 car derailment at Toddville, Georgia. In the meantime, two Carmen were sent at about 12:30 P.M. from the Macon Repair Shop to
the Toddville situs. These two Carmen were later advised by the General
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Foreman in charge that the rewheel truck was enroute, and they were offered
the option either to remain at the site and work or return to the Macon Shop.
They opted to return to the Shop. Claimants arrived at the derailment site at
approximately 2:45 P.M. and were told to standby; a set of engines had been
called to pull part of the derailment cars back on the track. At about 4:00
P.M. when the Macon Derrick Crew arrived and began working with a Contractor's
Mobile Crane pursuant to Article VII of the Wrecking Service Agreement, the
crane was used to rerail four cars. Claimants were relieved of their duties
at 4:30 P.M. and were sent back to the Macon Shop in a storehouse truck. They
had been at the site about one and one-half hours. Eight cars were rerailed
by use of blocks, wedges, replacers, tools and equipment from the Macon rewheel truck and the McIntire switching engines.
Based on the aforesaid, Claimants contend that since they were called
prior to the carmen who elected to return to the Macon Shop, Carrier violated
Rule 9. In effect, unlike the other two Carmen who were offered the opportunity to work, they were not provided this option, but directed to return
to the Macon Shop in a storehouse truck. They could have assisted in rerailing the eight cars. Moreover, they also asserted that Carrier discriminated
against them in violation of Rule 49.
Rules 9 and 49 are referenced as follows:
"ROAD WORK - OVERTIME
Rule 9. An employee regularly assigned to work at a
shop, engine house, repair track, or inspection point,
when called for emergency road work away from such shop,
engine house, repair track or inspection point, will be
paid from the time ordered to leave home station until
his return for all time worked in accordance with the
practice at home station, and also straight time rates
for straight time hours, and time and one-half rates for
overtime hours, whether working, waiting, or traveling.
If, during the time on the road, a man is relieved
from duty and permitted to go to bed for five (5) or
more hours, such relief time will not be paid for,
provided that in no case shall he be paid for a total of
less than eight (8) hours each calendar day, during
which such irregular service prevents the employee from
making his regular daily hours at home station. Where
meals and lodging are not provided by the Company,
actual necessary expenses will be allowed.
Employees will be called as nearly as possible one
hour before leaving time, and on their return will
deliver tools at point designated.
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If required to leave home station during overtime
hours, they will be allowed one hour preparatory time at
straight time rate.
Wrecking service employees will be paid in accor
dance with Agreement dated December 11, 1974 reproduced
beginning on Page 89 of this Agreement.
NOTE: No double time to be paid for road work or
wrecking service.
DISCRIMINATION
Rule 49. (a) It is the policy of Carrier and Organizations parties hereto, that the provisions of this
agreement be applied to all employees covered by said
agreement without regard to race, creed, color, age,
sex, or national origin.
(b) Carriers will not discriminate against any
committeeman who, from time to time, represent other
employees, and will grant them leave of absence and free
transportation where rail transportation is available
on the property when delegated to represent other
employees."
Carrier maintains that the two Carmen dispatched from the repair
track were to be used until the wheel truck and/or derrick crew arrived. It
notes that about 2:30 P.M. when Claimants apprised the General Foreman via
radio contact, they were near the derailment, the other two Carmen were
offered the opportunity to remain and work. This was related to the eight
cars that could possibly be pulled on. The General Foreman also believed that
an engine would be coming soon to make a pull and thus he instructed Claimants
to standby. When the derrick crew began arriving at about 4:00 P.M. along
with the Contractor's equipment and operator, Carrier points out, it relieved
Claimants, since they were not members of the wrecking crew and lacked contractual rights to the work under Article VII of the Wrecking Service Agreement. It argues that it has the prerogative to assign Carmen in the General
forces to perform road service on an as-needed basis consistent with the requirements of the service. It also disputes Claimants assertions that Rules 9
and 49 were violated. It contends there are no provisions in either rule that
alter or supercede Article VII of the Wrecking Service Agreement nor any
wording that gives any employee or employee group the exclusive right of use
of any of Carrier's road trucks.
In considering this dispute, the Board concurs with Carrier's position. We have carefully reviewed the language of Rule 9 to determine whether
Carrier's actions violated this Rule, but we cannot conclude that said Rule
was breached. Rule 9 provides the compensatory arrangements when an employee
regularly assigned to work at a shop, engine house, repair track or inspection
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point is called for emergency road work, but it does not provide work guarantees at the emergency road work situs. It also does not qualify the specific
requirements of Article VII of the Wrecking Service Agreement.
Similarly, we have carefully analyzed the on-situs appeals record,
particularly, the chronology of events and the time specific actions of the
involved parties but likewise we cannot conclude Rule 49 was violated. For
example, there were no indications that the General Foreman in charge uttered
discriminatory remarks or acted in a manner that was palpably inconsistent
with this rule. There were also no indications that an asserted practice of
discrimination was followed under similar work situations. The record was
bereft of such needed evidence.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ,
Nancy J./"~ - Executive Secretary
Dated at Chicago, Illinois, this 12th day of August 1992.