Award No. 15846
Docket No. MW-16370
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Nathan Engelstein, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
LOUISVILLE AND NASHVILLE RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that:
(1) The Carrier violated the Agreement when it used B&B
employes from the Cincinnati and Cumberland Valley Divisions to
perform bridge repair work on May 4, 5 6 7 and 8, 1965 near Morely,
Tennessee on
the K & A Division instead of recalling cut-off employes
on the K & A Division.
[Carrier's file E-357-5E-357]
(2) B&B Helpers W. H. Ellis, C. E.
Black, K
. J. McGhee, L. E.
Silvers, B&B Laborers D. Faulkner, Sam Lewis, B. L. Byrd, Edd Lewis,
S. C. McGhee, J. E. Davis, J. L. Coleman and J. C. Sawyer each be
allowed 32 hours' pay at their respective straight rates of pay and
an additional 16 hours each at their
respective time
and one-half rates
of pay.
(3) Messrs. R. R. Ross and Albert Adkins each be allowed the
difference between the B&B foreman's rate and the B&B Carpenter's
rate for 32 hours at straight time rate and
for 16 hours at time and
one-half rate.
EMPLOYES' STATEMENT OF FACTS: Claimants W. H. Ellis, C. E.
Black, K
. J. McGhee and L. E. Silvers have established seniority on the K&A
Division as
B&B
helpers and are the senior cut-off employes in that class.
Claimants D. Faulkner, Sam Lewis, B. L. Byrd, Edd Lewis, S. C. McGhee, J. E.
Davis, J. L. Coleman and J. C. Sawyer have established seniority as B&B
laborers on the K&A division and are also cut-off employes. Claimants R. R.
Ross and Albert Adkins have established seniority as B&B foreman on the
K&A division but, due to reductions in force are currently working in the lower
pay-rated classification of B&B Carpenters and, for that reason, are referred
to as cut-back employes.
At 6:40 A. M. on May 4, 1965 a car was derailed, resulting in extensive
damage to a bridge at Oliver Springs on the Harriman Branch line. Instead of
calling the claimants who, with the exception of Ross and Adkins, were cut-off
employes to make the necessary repairs to the aforementioned bridge, the
"LOUISVILLE AND NASHVILLE RAILROAD COMPANY
Office of Director of Personnel
Louisville,
Kentucky
November 26, 1965
Mr. W. P. Gattis, General Chairman
Brotherhood of Maintenance of Way Employes
Nashville, Tennessee
Dear Sir:
Your letter of November 23, file 1-5 K&A Diva., relative to claim
that L. E. Silvers and other employes named in your letter of
June 7 to Division Engineer Cox, each be paid for 32 hours at the
straight time rate and 16 hours at the overtime rate of their respective positions; and that R. R. Ross and Albert Adkins, Foremen, each
be paid the difference in the B&B Carpenter's rate and the B&B Foreman's rate for 32 hours at the straight time rate and 16 hours at
the overtime rate, on account of a B&B gang from the Cumberland
Valley Division and the Cincinnati Division seniority districts being
used to repair a bridge near Oliver Springs, Tennessee, on May 4,
5, 6, 7 and 8, 1965.
As explained to you in previous correspondence and in our
conference on November 17, an emergency existed and since the
C. D. and C. V. gangs were organized and equipped they were rushed
overnight to the bridge. As a matter of information, the bridge at
Oliver Springs is on the line to Harriman. It was destroyed by a derailed car at 6:40 A. M. May 4 and it was restored to service at
6:00 P. M. May 8, during which period no trains were operated due
to the line being broken.
We operate local freight trains over the Harriman Branch daily
except Sunday and a through freight train with coal for the
TVA Kingston Steam Plant on an average of five days per week.
During the month of May, we operated 20 coal trains over the Harriman line in addition to the local trains.
In view of the circumstances involved, the claim must stand as
declined.
Nothing further was heard about the matter until we received copy of
Mr. Crotty's letter to you under date of June 29, 1965, that he intended to file
an ex parte submission in the dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
As a result of a train derailment a bridge was
demolished near Oliver Springs, Tennessee, at 6:40 A. M. on May 4, 1965.
Carrier called a B&B gang from the Cumberland Valley Division seniority
district and a gang from the Cincinnati Division seniority district to repair
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the damage on May 4, 5, 6, 7, and 8, 1965. Carrier also assigned to this work
some of the furloughed B&B employes on the Knoxville-Atlanta Division in
whose seniority district the wreck took place. There were 38 cut-off KnoxvilleAtlanta employes. Of the 22 called, 21 reported for work.
Brotherhood makes claim that Carrier disregarded the seniority rights
of the furloughed employes named in paragraph 2 of the claim when it failed
to call them and instead used members of B&B gangs from a foreign seniority
district. It also claims that R. R. Ross and Albert Adkins, who had seniority as
foremen in the Knoxville-Atlanta Division, should have been called as foremen
in the reconstruction of the bridge. Because of force reduction these two men
were working in the lower pay-rated positions as carpenters. Brotherhood
requests compensation for them for the difference between the B&B carpenter
rate of pay and the B&B foreman rate.
Carrier contends that the demolished bridge located on the main line of
Cow Creek-Harriman branch, created an emergency which required immediate
attention. It states that although it called furloughed members of the
Knoxville-Atlanta B&B Building gang immediately, it also found it necessary
to use the organized Cincinnati and Cumberland Valley Divisions B and B
gangs equipped with tools because they could be put on the job promptly to
restore the bridge to service. It supports its action with rule 10(a) of the
Agreement which permits the transfer of employes from one seniority district
to another in an emergency. Furthermore, it asserts that there was no need
for foreman services.
The parties disagree as to whether the damaged bridge caused the main
line or a branch line to be blocked. Nevertheless, the derailed train did
demolish a bridge which disrupted service. The derailed cars were off to the
side of the damaged bridge and could not be moved until the bridge was rebuilt. Furthermore the highway crossed by the bridge was not passable and
the main line of the railroad was affected. This situation created an emergency
which Brotherhood recognized in a letter of May 28, 1965. The General
Chairman stated:
"I have no doubt that this was an emergency, but even so,
the
emergency did not warrant the action . . ."
In another letter, dated June 7, 1965, the General Chairman wrote:
"It is recognized that the Carrier's main track was blocked by this
accident, but even so it was also known that within the time needed to
notify Cumberland Valley Division and Cincinnati Division employes
these claimants could very easily have been contacted and instructed
to report to work . . ."
We conclude that the derailment resulted in an emergency.
The question of whether this emergency required the prompt attention and
action which Carrier took when it secured employes from a foreign seniority
district must now be considered. In an emergency Carrier should be permitted
to exercise latitude in meeting the situation. Here Carrier called upon gangs
from another foreign district that were intact because it believed they could
arrive quickly to make the repairs and it called twenty-two furloughed employes individually from the seniority district where the accident happened.
There is nothing in the record that gives evidence that Carrier's purpose in
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the use of employes of another seniority district was to evade the application
of the seniority principle and to circumvent the Agreement. Carrier acted
in good faith in exercising its descretion in meeting an emergency.
For these reasons we hold the agreement was not violated.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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;
That this Division of the Adjustment Board has jurisdiction over the
dispute involved herein; and
That the Agreement was not violated.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 13th day of October 1967.
Keenan Printing Co., Chicago, 111. Printed in U.S.A.
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