Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8844
SECOND DIVISION Docket No. 880+
2-CR-MA-181
The Second Division consisted of the regular members and in
addition Referee Gilbert H. Vernon when award was rendered.
( International Association of Machinists and
Parties to Dispute: ( Aerospace Workers
~ Consolidated Rail Corporation
Dispute: Claim of Employes:
1. On March
16, 1979,
the Consolidated Rail Corporation violated Rule 1
and the Contract Agreement of the controlling Agreement, by sending home
the first shift at twelve noon and not allowing the second shift to
work because of their alleged emergency.
2. That, accordingly, Machinists G. Webb and et al, on first shift, be
paid
3.5
hours pay at the prevailing Machinist rate of pay, for
compensation lost.
3.
That, accordingly, Machinists S. Hosa and et a1, on second shift, be
paid sight (8) hours pay at the prevailing Machinist rate of pay, for
compensation lost.
Findings:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employs or employes involved in this dispute
are respectively carrier and employs within the meaning of the Railway Labor Act
as approved June 21,
193+.
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 in this case are relatively undisputed. On Friday, March 16,
1979
at approximately 11:00 a.m. a construction company working on a sewer line
in the vicinity of the Carrier's Collinwood diesel locomotive shop severed an
underground power line causing a power outage. The power was not restored until
x+:00 a.m. Monday, March
19.
The shop operates on a Monday through Friday basis
with two shifts each day. As a result of having no power the Carrier sent the
first shift workers home at approximately 12:01 p.m., approximately
3h
hours
prior to quitting time. Some of the second shift workers were contacted and
told not to come in. Those who could not be contacted and reported to work were
sent home upon arrival, however, were paid for four hours pay pursuant to
paragraph A of the February
19, 1970
Agreement. The 1st shift employees were not
paid for the remainder of their shift and the second shift employees were not
paid for their shift except some of the employees were paid
for
four hours as
mentioned above. The claim is en attempt to recover these amounts so that sash
employee would receive a full eight hours pay for March
16.
Form 1 Award
No.
8844
Page 2 Docket No. 880+
2-CR-MA-'81
The pertinent contract language reads as follows:
"Rules, agreements or practices, however established, that
require advance notice to employees before temporarily
abolishing positions or making temporary force reductions
are hereby modified to eliminate any requirement for such
notices under emergency conditions, such as flood, snow storm,
hurricane, tornado; earthquake, fire or labor dispute other
than as covered by paragraph B below, provided that such
conditions result in suspension of a Carrier's operations in
whole or in part. It is understood and agreed that such
temporary force reductions will be confined solely to those
work locations directly affected by any suspension of operations. It is further understood and agreed that notwithstanding the foregoing, any employee who is affected by an
emergency force reduction and reports for work for his
position without having been previously notified not to
report, shall receive four (1E) hours' pay at the
applicable rate of his position."
Under this rule it is clear that the Carrier is not obligated to give any advance
notice before making a temporary job abolishment or force reduction in the event
of an emergency. Both parties agree that the critical question is whether the
situation that existed on March 16 constituted an "emergency" within the meaning
of paragraph A.
The Organization makes the following arguments:
"The threshold question them, in this instant dispute, is -
did the occurrence, the careless cutting of the power line,
constitute an emergency condition, as an emergency was
contemplated by the framers of the Agreement? We think not.
Support of this position is taken from typical examples of
Emergency Conditions cited in the Agreement, "Flood, snow,
storm, hurricane, tornado, earthquake or fire", which examples
of emergency typify situations over which there is little or
no control, unforeseen circumstances of events, acts of God.
Extending the application of this reasoning would possibly
include in the contemplated definition of emergency such as
typhoon, cyclone, plague, tidal wave, toxic chemical in the
atmosphere from storage tank leakage or explosion resulting
in an area evacuation, etc. All of the conditions
stipulated thus having an immediate and unquestionable
adverse affect to the operations of the Carrier and the
safety of its employees.
Form 1 Award No.
8844
Page
3
Docket No.
8804
2-CR-MA-181
"In its construction the Agreement recognizes that not all
situations which are of an adverse nature are emergency
situations and this is supported by the provision of the
controlling agreement stipulating '°T.abor Dispute°' as an
emergency condition arid provides "B" of the Agreement as
the vehicle for its applicability.
In the instant dispute, none of the factors governing what
constitutes an emergency are identifiable, thus no emergency
condition existed and the Carrier's implementation of an
emergency force reduction was unwarranted and a violation of
the Agreement."
The Carrier arguers
"It has been the contention of the Employees on the property
that the above cited Rule has no bearing on the case in
point because the power outage was not caned by a flood,
snow storm, hurricane, tornado, earthquake, fire or labor
dispute. It is true that the power outage was not caused
by any of these specific reasons, however the key words in
Paragraph "A'° above are °'such as"; it is abundantly clear
that these are merely representations of emergencies, and
are not, nor were they
meant to
be by the drafters of that
Agreement, tune sole conditions which would constitute an
emergency. It is easily discernible that emergencies can
be brought about in numerous ways, and not singularly by
the reasons illustrated. The Dictionary defines an
emergency as, "An unforeseen combination of circumstances
which calls for immediate action". This is exactly what
confronted the Carrier on March
16, 19?9,
at Collinwood
Diesel Locomotive Shop. The power outage was certainly
unforeseen; was something over which tfie Carrier head no
control; and called fm immediate actiorza."
Both arguments recognize that the. rule does not lird.t its application to
only the examples used. See, for instance, Third Division Award
15607.
While
the rule doesn't limit its application to the examples cased it. must be recognized
it does limit it to like asr similar situations. `ISrese examples do give some
guidance as to the elements or characteristics that wouid distinguish between a
variety of potentially arguable 'emergencies°° and those the parties intended to
be covered in the application of the rule.
The language in this case is difficult to interpret.. Generally, the word
emergency would mean, as the Carrier state., any ;mforeseen situation which
required
immediate action This
general definition is
somewhat
limited by the
use of some of the examples used which suggest the word is being used to cover
emergencies that tends to be significantly serious. Some of the examples (flood,
snowstorm, hurricane, tornado, earthquake) imply that the parties only intended
to exempt naturally based emergencies or what might be referred to as acts of
God. If the examples stopped there it would be s different situation but
F orm 1
Page
4
Award No. 881+1+
Docket No. 8801+
2-CR-MA-181
the ambiguity of the language is increased even more because the examples also
include man-made emergencies as well as fires (which could be both man-made
or an act of God) and labor disputes. Either of these examples could cause
suspension of the Carrier's operations. Even the organization's arguments allow
that man-made or non-nature emergencies other than those listed in the rule
might possibly be covered.
In this particular instance, it is the Board's opinion that the rule can be
reasonably interpreted to include an emergency such as the instant one. The
Organization has failed to convince us that in the face of the ambiguous language
of the rule that the writers of the Agreement intended to specifically exempt
situations such as the instant one from the meaning of the term "emergency".
A WAR D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAIIROAAD ADJUSTMENT BOARD
By Order of Second Division
o emarie Brasch - Administrative Assistant
- Dated (at Chicago, Illinois, this 9th day of December,
1981.