NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 SECOND DIVISION Award No. 12535
Docket No. 12426
93-2-91-2-230
The Second Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood Railway Carmen Division
(Transportation Communications
(International Union
PARTIES TO DISPUTE:
(Chicago and North Western
(Transportation Company
STATEMENT OF CLAIM:
"1. Carmen R. Kress, T. Holt and L. Ivancevic,
Proviso, Illinois, were deprived of work and
wages to which they were entitled when the
Chicago & North Western Transportation Company
violated the controlling Agreement on November
4, 1989 at derailment on Track 29 Main in Yard
9, Provison, Illinois, when the Carrier failed
to call they three Claimants to operate
Maintenance-of Way crane and rerail air dump
car CNW 11857.
2. Accordingly, Carmen R. Kress, T. Holt and L.
Ivancevic are entitled to be compensated in
the amount of eight (8) hours pay at the time
and one-half rate, plus .25 cents per hour
derailment p«y."
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 employe 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.
Form 1 Award No. 12535
Page 2 Docket No. 12426 _~,r
93-2-91-2-230
On November 4, 1989, the Carrier experienced a one-car
derailment, in an upright position. The car was a maintenance of
way air dump hopper and Maintenance of Way forces rerailed the car.
The Carrier asserts that the operation was a "minor
derailment," and thus, Rule 60 permits this type of action when a
wrecking derrick is not needed, and it insists that a crane is not
the equivalent of a wrecking derrick.
The Organization did not agree and insisted that the
derailment was not minor because a crane was used to lift the car
back onto the rail.
The Agreement specifies various work reserved to Carmen. We
note that all or part of regularly assigned wrecking crews, as may
be required, will be called for wrecks or derailments, but:
"This does not preclude using other employees
to pick up or clear minor derailments when
wrecking derrick is not needed."
The parties have continued to debate, on the property and
before us, whether or not the action was clearance of a major or
minor derailment, and the Organization insists that it was major -
because the Maintenance of Way crane is comparable to a wrecking
derrick.
We are not unmindful of the diverse decisions which have been
issued on this property. For instance, Second Division Award 11905
sustained a claim, making reference to a wrecking derrick or a
"suitable substitute," and Carrier Members dissent to that Award
asserting that said Award added language to Rule 60.
Nonetheless, other Awards have denied claims. See for example
Second Division Award 12401 dealing with a rerailing truck to
rerail two cars.
This Board has noted the contrary assertions concerning major
vs. minor and whether a crane is equivalent to a wrecking derrick.
But, in the final analysis we are faced only with conclusions. The
Organization has the burden of proof here and we fail to find
substantive evidence to establish the basis for the claim. Here,
as in Second Division Award 12401,
"...we cannot determine with any degree of
substantive precision whether the derailment
was actually major or minor ...the litmus test
under Rule 60 as to whether a wrecking crew is
needed is the actual nature of the _
derailment."
Form 1 Award No. 12535
Page 3 Docket No. 12426
93-2-91-2-230
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy . Rgver - Secretary to the Board
Dated at Chicago, Illinois, this 12th day of May 1993.