THIRD DIVISION
(Supplemental)
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On or about July 23, 1960, the tracks and bridges just north of Checotah, Oklahoma, became impaired and impassable as a result of heavy rains in that area. On July 26, Division Engineer J. H. Hughes hired some new employes to temporarily augment the small track gangs regularly assigned to that area. These new temporary employes were hired and used for the purpose of cribbing tracks with cross ties, surfacing and lining tracks, unloading ties, inserting new ties, and all other work normally and traditionally performed by section men and extra gang men in connection with placing tracks and bridges in a passable condition. These newly hired employes performed service as follows:
For each and all of the foregoing reasons the Carrier respectfully requests the Third Division to dismiss this alleged claim or to deny it in its entirety.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company denies each and every, all and singular, the allegations of the Brotherhood of Maintenance of Way Employes in this alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons the Missouri-Kansas-Texas Railroad Company respectfully requests the Third Division, National Railroad Adjustment Board dismiss or deny said alleged claim, and grant said Railroad Company such other relief to which it may be entitled.
OPINION OF BOARD: An emergency condition existed following unusually heavy rains which flooded about 5 miles of main-line track and washed out one rail bridge.
In addition to available railroad forces, track and bridge laborers were hired to repair the damage. These additional laborers were paid $1.50 an hour, which was below the Agreement rates for laborers.
The issue is whether these additional laborers were newly hired railroad employes, as the Brotherhood of Maintenance of Way Employes contends, or employes of an earth moving contractor, as the Carrier contends. If they were railroad employes, they were entitled to the higher rate of pay.
The record shows that the Carrier's Division Engineer, who was the railroad's hiring agent for such employes, exercised at least general supervision of the laborers and that he personally paid each of the employes in cash or by personal check. The Employes show further, through individual signed statements, that the Division Engineer actually hired the men to work; that he, or another Carrier official, directly supervised the laborers' work; that the contractor's representatives did not at any time supervise such work; and that the men believed they were working for the railroad.
The Division Engineer, also in a signed statement, contends, however, that the laborers were employes of the contractor and not of the railroad and, therefore, were not subject to the Agreement. On the matter of his having paid the employes himself, he states that he did this "to assist the contractor's superintendent."
The Division Engineer's statement is uncorroborated since there are no facts to support his conclusion that the laborers worked for the contractor and not for the railroad. Accordingly, we accept the Employes more concrete showing that these employes actually worked for the railroad.
The Employes' claim for additional compensation is buttressed by the provision in Article 9, Rule 2, providing that in the application of the rule to new employes temporarily brought into the service in emergencies, the starting time of such employes will be considered as of the time that they commence work or are required to report for work.
Obviously, the Agreement contemplated that new employes would be required temporarily in emergencies-as in this case. The Agreement pro- 12847-31 539