NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
ginning on or about February 1, 1957, it used track forces from the Louisville Division to perform both straight-time and overtime work on the E. K. Division while the claimant employes were furloughed from and available for service on the E K Division and, as a consequence thereof
(2) The Carrier be ordered to allow the following claim which was appealed to Mr. W. S. Scholl, Director of Personnel in a letter dated April 23, 1957:
EMPLOYES' STATEMENT OF FACTS: At the close of work on January 15, 1957, another force reduction took place on the E. K. Division (Eastern Kentucky Division) as a result of which numerous track laborers were laid off. Account of the above-mentioned and other previous force reductions, a number of track foremen and assistant track foremen (including claimants Stacy, Jett, Clem and Griffin) were working in lower pay-rated ranks and classification.
As a result of the January 15th force reduction, the only extra gang on the E. K. Division was reduced to eight laborers. As a result of the force reduction of January 15, 1957 and of previous force reductions, track laborers and other track department employes with as much as 30 years of seniority on the E. K. Division were laid off. As of January 16, 1957, there were at least 100 employes furloughed from the Track Department on the E. K. Division.
Just fourteen days after the lay-off of January 15, 1957, a flood damaged tracks between Haddix, Kentucky and the southern extremity of the E. K. Division.
Without attempting to recall any employes furloughed from the E. K. Division, the Carrier sent two extra gangs from the Louisville Division to work on the E. K. Division. Each of said extra gangs consisted of a foreman, an assistant foreman and sixteen laborers. These extra gangs were in charge of Foremen Foster and Lane. 10982-19 191
effective September 1, 1947, as revised to August 1, 1952, copy of which is on file with the Third Division, National Railroad Adjustment Board, confines seniority rights of employes to their respective seniority districts as established therein. However, Rule 10-Transfer From One Seniority District to Another, provides:
"(a) If it should be essential, in the opinion of the Management, to efficient operation to transfer an employe from one seniority district to another in the same subdepartment, that may be done.
"(b) A permanent transfer requires concurrence on the part of the employe concerned, and will not be made unless, after bulletining a vacancy or new position, there is no competent man on the district who bids for it. An employe permanently transferred under (a) and (b) shall take such seniority as he has with him; a temporary transfer shall not exceed 49 work days."
Under the provisions of the foregoing there was no violation of the agreement in temporarily transferring the two extra gangs to the Eastern Kentucky Division. Section "A" clearly sets the transfer of employes as was done here to be one of managerial judgment and prerogative. Furthermore, Rule 48 which provides:
"Employes taken from their assigned territory to work at fires, washouts, or other conditions that may stop traffic, will be furnished meals and lodging by the railroad company if not accompanied by boarding cars; this rule not to apply to employes customarily carrying midday lunches and not being held away from their assigned territory an unreasonable time beyond the evening-meal hour. Employes will not be worked in excess of 8 hours without a meal."
recognizes that employes might be used off their assigned territory to work at fires, washouts, etc.
The hardship which existed because of the flood applied not only to the L&N Railroad but perhaps what is more important to the citizens of the communities which it serves. The need for getting the railroad open as quickly as possible was foremost in the minds of the division officials, in order that these communities might obtain such relief as was needed to restore normal conditions to the population in these areas.
All matters referred to herein have been presented, in substance, by the carrier to representatives of the employes, either in conference or correspondence.
OPINION OF BOARD: Claims here are submitted on behalf of two extra gang Foremen, two assistant extra gang Foremen, end thirty-two 10982-20 192
laborers, all Employes making claim are identified in the Statement of Claim, in addition to claims for straight time pay, for 8 hours service, such Employes are requesting pay at the overtime rate, for work performed at both straight and overtime rates, as is in effect for the respective positions held by each Employe. Such claims are premised on the allegations made, that Carrier violated the effective Agreement between the parties when it used Extra Gangs from the Louisville Division, to perform service on the Eastern Kentucky Division, on which all Claimants here hold seniority rights. It is contended that the Employes here involved were furloughed Employes, due to reduction in forces, and that Carrier violated its Agreement when it required Employes, holding seniority on the Louisville Division, to be sent to and perform service in the E. K. seniority district, to the detriment of the named Claimants here and by its refusal or failure to recall the furloughed Employes, on their own seniority district to perform the service required. The Employes rely on the provisions of,
Carrier contends, by way of denying the claims, and any violation of the Agreement, that due to flood conditions on the southern portion of its E. K. Division, causing considerable damage to its property between Jackson and Hazard, Kentucky, that because of damaged communications, washed out of roads, it had no means of calling the furloughed employes to return to their positions, and also because of the lack of sufficient tools and bedding by the Employes at Ravenna, it, of necessity, called upon two gangs of Employes from the Louisville District to go to the E. K. District to make the required repairs, because of emergency conditions existing, as caused by the flood conditions present .
The record shows that the Employes named here as Claimants, were track forces holding seniority on the E. K. Division. That such Employes, due to a reduction in forces on the E. K. Division, on January 15, 1957, such forces at Ravenna were reduced to one extra gang, consisting of eight laborers. That such Employes as here involved had complied with Rule 21 (c) and 21 (g), by giving Carrier notice through its Division Engineer, of their address, in order that their seniority rights may be properly protected. Carrier makes no denial that such compliance was not accomplished by such furloughed Employes, In fact there is evidence that an Employe had contacted the Carrier, and expressed his availability to return to work. Rule 22 (g) requires the Carrier to call the furloughed Employes to fill temporary vacancies, such as existed here, 10982-z1 193
The Employes here complied with the provisions of Rules 21 (c) and 21 (g). The record shows that Carrier made no effort whatever to call the Employes for service, to which they were entitled to perform, in view of their seniority, and the provision of Rule 22 (g). Carrier's only explanation was to the effect that it was not practical to attempt to locate all the furloughed Employes. This contention of Carrier carries no weight, here as Carrier made no effort to contact the Employes, therefore we are in no position to determine if such effort would have been practical or not.
Carrier did violate the Agreement, by its evident disregard of the provisions of Rules 4 (a) and 4 (c). The Claimants here held seniority rights on the E. K. Division, Carrier has given no reasonable explanation why it failed to respect the seniority rights of the Claimants, except that it would not be practical. The record shows that Carrier had first knowledge of the flood conditions occurring on the E. K. Division at 11:45 A. M., January 29, 1957, but no extra gangs were sent from the Louisville District until February 1, 1957, to make repairs to the damaged track, two days after it received direct information, as to the seriousness of the flood conditions. We find that Carrier had ample time to call the Employes at Ravenna, and properly equip the Camp cars, if they were not already so equipped. The parties disagree as to evidence regarding equipment, but it appears that Carrier did have a reasonable time to get such necessary equipment to Ravenna by train or other means of transportation, before the two gangs were called at Louisville to do the required work.
There is some evidence some of the named Claimants, did perform service for Carrier, with the Louisville gangs, but on positions allowing them a lower rate of pay, than their positions required under their position they would have filled had they been called to serve on their own gangs. Such involved Claimants are entitled to additional pay only for the difference between what they were paid by Carrier and what they would have earned had they been properly called by Carrier.
Some claims are also made by Employes for alleged service performed on February 22, 1957. The record convinces the Board that no service was performed on such date, that no service was required of the Louisville gangs, after February 15, 1957, when they were returned to their own headquarters. Such claims are not supported by the record here.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934; 10982-22 194