Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7246
SECOND DIVISION Docket No. 7032
2-SCL-CM-t77
The Second Division consisted of the regular members and in
addition Referee C. RobE:rt Roadley when award was rendered.
( System Federation No. 42, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (C armen)
( Seaboard Coast Line Railroad Company
Dispute: Claim of Employes:
1. That the Seaboard Coast Line Railroad Company violated terms of
Article V of the Agreement of April 24, 1970 when they denied double
time payment for service rendered on second rest day for Mr.
Beorge R. McDonald.
2. That the Seaboard Coast Line Railroad Company be ordered to
compensate Mr. George R. McDonald an additional four (4) hours
at pro rata rate for service on November 24, 1974.
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.
Panties to said dispute waived right of appearance at hearing thereon.
The issue to be,decided in this docket is whether the work performed
by Claimant on his first rest day, November 23, 1974, came within the
exception contained in Article V of the National Agreement of April 24, 1970,
i.e. was the work performed "emergency work". There is no dispute with
respect to the Claimant workJ:ng all the hours of his assignment in the work
week. Article V of the National Agreement of April 24., 1970, provides for
the payment of double the basic straight time rate for work performed on the
second rest day of an employee's work week provided he worked all the hours
of his assignment in that work week and worked on his first rest day with
the following exception:
" , except that emergency work paid for under the call
rules will not b e counted as qualifying service under this
rule, nor will it be paid for under the provisions hereof."
Form 1 Award No. 72
46
Page 2 Docket No.
7032
2-SCZ-CM-'77
The claim is for an additional four
(4)
hours pay at the pro rata rate
for service on Claimant's second rest day on the grounds that the service
performed on the first rest day was not "emergency work" and therefore the
exception in Article V does not apply.
Petitioner agrees that there is no dispute with Carrier (page 1 of
Employees Rebuttal) as to the work performed by Claimant on his first rest
day. Claimant retailed a loaded car at Durand, Georgia; then went to
Fields, Georgia to change a dExmged wheel on a car loaded with gravel; then
to Bineville, Georgia to change a damaged wheel on a car loaded with limestone.
Claimant also performed service at other locations. The record shows that
the derailed and damaged cars were located in pass and/or spur tracks in
single track territory and, a~s asserted by the Carrier, if not promptly
repaired would have seriously affected the Carrier's operation. It was for
this reason that the Carrier deemed the work to be of an emergency nature.
Petitioner premised his argument on the fact that the damaged cars were
not blocking the main line and that, therefore, no emergency existed.
Petitioner cited Third Division Award No.
4354,
among others, as defining what
constituted an emergeicy, to grit:
"An emergency has been previously defined in awards of this
Board. It has been said that it is suggestive of 'a
sudden occasion; pressing necessity; strait; crisis.'
It implies a critical situation requiring immediate
relief by whatever means at hand."
Petitioner also cited Third Division Award No. 2040 which stated in
part:
"Webster's defines exzergency as 'a sudden occasion;
Pressing necessity; strait;.crisis.' It implies the
unusual rather than the usual; the extraordinary rather
than the ordinary."
Also cited by Petitioner was Second Division Award No.
5484,
regarding
the concept of burden of proof, as follows:
"In asserting that an 'Emergency' existed, Carrier thus
is raising an affixzsative defense, and the burden of proof
is upon the Carrier to prove such defense by competent
evidence."
What is the competent evidence in the subject case? There is no
disagreement between the partf_es to the fact that the damaged cars (presumedby logic to be inoperative) which were repaired by Claimant-such service
being the reason for the Call-were in passing and/or spur tracks, were
blocking said tracks, and tha,; said tracks were located in single track
territory. Under these circumstances the Carrier determined that if the
Form 1
Page
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Award No. 7246
Docket No. 7032
2-SCL-CM-177
needed repairs were not promptly made its operations would have been
seriously affected, a decision that could only be made by the Carrier. In
this situation one could hardy successfully argue that in order to determine
the existence of an emergency a carrier would have to wait until its operations
were actually impaired through not having had the needed work performed. To
have done so would conceivably have exposed the Carrier to the defense of
charges of a greater magnitude than are herein present! Having determined
that the subject work could riot b e postponed and thus be performed by
regularly assigned forces the: Carrier was obligated, by applicable provisions
in the Agreement, to pay a penalty rate to the Claimant and this was done.
We find that, in this particular case, the Carrier met the burden of
proof in asserting the existence of an emergency - the situation was
"unusual rather than usual; ,.. extraordinary rather than ... ordinary."
Therefore, the referrenced exception in Article V of the National Agreement
of April 24, 1970, applies and we will deny the claim.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMEr1T BOARD
By Order of Second Division
;osemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 11th day of March, 1977.