Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11086
SECOND DIVISION Docket No. 11058
2-RF&P-CM-'86
The Second Division consisted of the regular members and in
addition Referee Peter R. Meyers when award was rendered.
(Brotherhood Railway Carmen of the United States
(and Canada
Parties to Dispute:
(Richmond, Fredericksburg and Potomac Railroad Company
Dispute: Claim of Employes:
1. That the service rights of Carman W. McDaniel and rules of the
controlling agreement were violated account he did not receive double time
rate of pay for work performed on his second rest day, March 15, 1984.
2. Accordingly, Carman McDaniel is entitled to be additionally compensated for the difference between the rates of time and one-half and double
time for his service (8 hours) on March 15, 1984.
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.
Claimant was employed as an Car Inspector by Carrier at its Bryan
Park Terminal in Richmond, Virginia. Claimant worked all of his regularly
assigned hours during the week of March 9-13, 1984. On March 14, 1984,
Claimant's first rest day, and on March 15, 1984, Claimant's second rest day,
Carrier assigned Claimant to perform eight hours' work at a derailment site;
he was paid at the time and one-half rate. The organization thereafter filed
a Claim on Claimant's behalf, seeking additional compensation for March 15,
1984, in an amount equal to the difference between the time and one-half and
the double time rates for Claimant's eight hours of service.
The Organization contends that the Carrier violated Article V of the
April 24, 1970 National Agreement, which provides:
Foam 1 Award No. 11086
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"All agreements, rules, interpretations and prac
tices, however established, are amended to provide
that service performed by a regularly assigned
hourly or daily rated employee on the second rest
day of his assignment shall be paid at double the
basic straight time rate provided he has worked all
the hours of his assignment in that work week and
has worked on the first rest day of his work week,
except that emergency work paid for under the call
rules will not be counted as qualifying service
under this rule, nor will it be paid for under the
provisions hereof."
The Organization argues that the Claimant qualified for the double time rate
for his work on March 15 when he worked all the hours of his regular work week
and eight hours on each of his two rest days. The Organization contends that
the work performed on Claimant's rest days was not emergency work.
The Organization asserts that the Carrier must establish that emergency conditions existed on the day in question, but has failed to do so. The
Organization points out that the Carrier did not send out a crew to handle the
rerailment until the start of the first shift on March 14, eighteen hours
after the derailment occurred on March 13. Moreover, the Carrier stopped work
at the site after the end of the eight-hour shift on March 14; irk did not
resume until the next day. The Organization also contends that the Carrier
could have sent out a crew immediately after the derailment occurred; both
Richmond and another Carrier yard 70 miles north of the derailment site maintain operations 24 hours per day, 7 days per week. The organization asserts
that by waiting eighteen hours to dispatch a crew to the derailment site, the
Carrier demonstrated that the work did not require immediate attention and,
therefore, was not an emergency situation. The Organization therefore asserts
that the Claim should be sustained.
The Carrier contends that the Claimant performed emergency work on
his two rest days and does not qualify for the double time rate on the second
day. The Carrier asserts that the record establishes that an emergency existed
at the time. The Carrier argues that although this was not a mainline derailment and the mainline was not blocked, the situation did constitute an emergency; a locomotive needed for twee assignments was blocked by the derailed
cars. The Carrier asserts that quickly clearing the derailment and releasing
the blocked locomotive were necessary for the Carrier to meet its operational
requirements.
The Carrier states that if Claimant had worked in the shop on his
first rest day, then he would have qualified for the double time rate for
service on his second rest day. Employees called for emergency road work away
from the shop, however, are paid under Rule 10 of the Agreement, which provides:
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"An employee regularly assigned to work at a shop,
engine house, repair track, or inspection point,
when called for emergency road work away from said
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 for waiting or for traveling, rate and one-half
for the recognized overtime hours and straight time
for the recognized straight time hours at hone
station. When the employee is required to go to
shops for tools or material before leaving hcxne
station, he will be paid for the time necessary to
cover such service.
If, during the time on the road, a man is relieved
from duty and permitted to go to bed for five 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, when such irregular service prevents the
employee from making his regular daily hours at
home station."
The Carrier contends that Claimant was called to perform emergency road service at an outlying point; Claimant did not replace an absent employee or
augment the existing force. On his first rest day, Claimant did not perform
his regularly assigned type of work. The Carrier therefore argues that the
exception in Article V applies, and Claimant is not entitled to the double
time rate of pay for service on his second rest day.
The Carrier also contends that under Rule 10, an emergency crew can
be relieved from duty on the road for rest, and time and one-half is the proper compensation. The Carrier therefore asserts that there is no merit to the
organization's contention that there was no emergency because the wreck crew
stopped work after eight hours on the first day. The Carrier argues that the
nature of the situation determines whether emergency work is involved. The
Carrier contends that this Board previously has found that an emergency situation was created by a Carrier's inability to meet its operating requirements
because of inoperable locomotives that needed repair.
The Carrier therefore contends that the Claim is without merit and
should be denied.
This Board has reviewed the record in this case, and we find that
there is not sufficient evidence to support the Carrier's position that an
emergency existed. Therefore, the Carrier violated the Claimant's right, pursuant to Article V, when the Claimant was not paid double time for working his
second rest day in a row.
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In asserting that an emergency existed, the Carrier is thereby
raising an affirmative defense and bears the burden of proving, by competent
evidence, that the work was of an emergency nature. (See Second Division
Awards 5484 and 6252.) An examination of the record fails to show that the
Carrier has fulfilled its obligation in that regard. The rerailing of five
cars after eighteen hours was hardly the type of situation that constitutes an
emergency. Moreover, the Carrier suspended operations at the derailment site
on March 14 and waited until the first shift on March 15 to begin the operation again. That action on the part of the Carrier made it clear that the
work involved did not require the immediate relief that an emergency situation
demands. In the cases cited by the Carrier, most notably Second Division
Awards 7246 and 6510, the Carriers provided extensive proof that emergencies
existed so that any delay in performing the repairs would have had a significant, detrimental impact on the Carrier's operations. No such evidence was
presented here in that regard. Therefore, the Claim must he sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest
Nancy J. *0 - Executive Secretary
Dated at Chicago, Illinois, this 3rd day of December 1986.