Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10887
SECOND DIVISION Docket No. 10672
2-BN-CM-'86
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern Railway Company violated the terms
of our current Agreement, particularly Rules 7(c) and Rule 86 when arbitrarily
disallowed the proper time and one-half (1.5) rate for performing rerailing
service at Chelsea, Montana.
2. That accordingly, the Burlington Northern Railroad Company be
ordered to compensate the following Williston Carmen A. W. Bachmeier, L. L.
Berry and P. A. Kleven in the amount of the difference between straight time
and time and one-half (1.5) rate for the following days; April 20, 21, 26, 27
and 28, 1983 or a total of nineteen (19) hours each at the straight time 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.
Claimants are regularly assigned to the Williston, North Dakota road
truck. As a result of a derailment on April 13, 1983, the Claimants were
called to augment the Laurel Emergency Wrecking Crew at Chelsea, Montana.
After completing the actual re-railing of cars and clearing the main line, the
Laurel crew was released on April 14, 1983. The Williston crew including the
Claimants continued to work at the derailment making repairs to the train
line, trucks and safety appliances and salvaging parts. In conjunction with
this work, the Claimants worked eight hours each on April 20, 21, 26, and 27,
1983, and six hours on April 28, 1983, for a total of 38 hours for which they
were paid at the straight time rate. Claimants assert they were entitled to
be compensated at time and one-half for those 38 hours and therefore claim
one-half time or 19 hours pay for work performed on those dates.
Form 1 Award No. 10887
Page 2 Docket No. 10672
2-BN-CM-'86
Rule 7(c) of the applicable Agreement concerning "Emergency Road
Work" provides:
"(c) Wrecking service employees will be
paid at the rate of time and one-half for all
time working, waiting or traveling from the time
called to leave home station until their return
thereto, except when relieved for rest periods.
Rest periods shall be for not less than five (5)
hours nor more than eight (8) hours, and shall not
be given before going to work nor after all work
is completed."
Rule 86 of the applicable Agreement concerning "Wrecking Crews"
provides:
"(a) Wrecking crews, including derrick
operators and firemen, will be composed of carmen
who will be regularly assigned by bulletin and
will be paid as per Rules 6 and 7.
(b) When wrecking crews are called for
wrecks or derailments outside of yard limits, the
regularly assigned crew will either accompany the
outfit or will be transported by other means to and
from the location of the wreck or derailment. For
wrecks or derailments within the yard limits,
sufficient carmen will be called to perform the
work.
(c) In the event other than company-owned
equipment is used for wrecks or derailments outside
yard limits, sufficient carmen from the nearest
location will be called to perform ground service
(not operating) with the other than company-owned
equipment. The number of carmen called will be
sufficient when it equals or exceeds the number of
groundmen used by the outside firm.
(d) Nothing contained in the Carmen's classification of work rule will prohibit train crews or
operating department yardmen from performing rerailing work when it is done with the use of equipment
carried on engine or caboose.
(e) Meals and lodging will be provided by the
Company while crew are on duty in wrecking service.
(f) When needed, men of any class may be
taken as additional members of wrecking crews to
perform duties consistent with their classifications.
Form 1 Award No. 10887
Page 3 Docket No. 10672
2-BN-CM-`86
(g) Except as provided in paragraph (c) of
this rule, where Carrier acquires bulldozers of like
off-track equipment, by lease or purchase, carmen
will operate and man such equipment when it is used
in wrecking service".
The Organization argues that the Claimants were performing wrecking
service on the disputed dates since the work performed was a result of the
derailment and therefore the Claimants are entitled to time and one-half pay
for wrecking service. The Carrier argues that the Claimants were not engaged
in wrecking service on the claimed dates but instead were engaged in repair
service which is not compensable at time and one-half.
Upon an examination of the entire record, we find that the Organization has not carried its burden of proof sufficient to demonstrate that the
Claimants were engaging in wrecking service on the disputed dates. While it
is true as the Organization claims that "the mere fact that the disputed work
was performed some two weeks after the initial wrecking service does not of
itself take it out of the classification of wrecking service", Second Division
Award No. 4571, the burden still lies on the Organization to demonstrate that
the work performed on the disputed dates was wrecking work.
Here, the record demonstrates that the re-railing of cars and the
clearing of the main line was completed on April 14, 1983, when the Laurel
Emergency Wrecking Crew was released. According to the evidence in the
record, the work performed by the Claimants on the disputed dates was repair
to train line, trucks and safety appliances and salvaging parts. The fact
that this work existed as a result of a derailment "does not make it wrecking
work per se. Second Division Award No. 9423. However, "[i]f it was the work
of picking up scrap and debris in the maintenance of the right of way
following the wreck, then [it is repair work]". Id. The basis for premium
pay under these provisions is that "wreck service is necessarily of an
emergency nature and usually requires employes to be called for duty at
irregular hours and work for long periods under unusual circumstances, often
where the Carrier operation is at a standstill until the wreck is cleared".
Second Division Award No. 10105. Rather, the work performed here appears to
have been normal road work. Second Division Award No. 10089. Therefore, time
and one-half pay for the disputed dates was not warranted.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
Nancy J Xkll~er - Executive Secretary
Dated at Chicago, Illinois, this 25th day of June 1986.