Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36524
Docket No. MW-35386
03-3-99-3-260
The Third Division consisted of the regular members and in addition Referee
Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Burlington Northen Santa Fe Railway (former Burlington
( Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned and used
District 11 Track Inspector D. Bobby and District 11 Group 4
Machine Operators R. Kienow and R. W. Erickson to perform
service of plowing snow on Seniority District 14, instead of assigning
the Claimants to perform the subject work on January 2, 1997
(System File T-D-1280-H/MWB 97-04-23AG BNR).
(2) As a consequence of the violation referred to in Part (1) above,
Foreman V. J. Middlestead shall ` . . . receive pay for eight (8)
hours straight time and six (6) hours time and one half rate, to be
paid at his respective rate of pay. ***' and Machine Operators K.
L. Dallman and J. J. Nogowski shall each `*** receive pay for eight
(8) hours straight time and six (6) hours time and one half rate, to
be paid at the rate of pay for Group 3 machine operators."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
Form 1 Award No. 36524
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03-3-99-3-260
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The Organization alleges that on January 2, 1997, the Carrier violated the
Agreement when it directed employees from Seniority District 11 to plow snow on
Seniority District 14. As the Claimants assemble in the same facility and location, the
Carrier's misuse of employees who possess no seniority in District 14, removed work
opportunity from those employees who had the Agreement right to perform the work.
The Carrier defended its position by arguing that it had a snow emergency. It
further argued that it was not possible within the Agreement or under the extant
conditions to have made assignment as the Organization argues. Further, the Claimants
were fully employed, working significant overtime during the same time of this claim.
The Board studied the record and the Carrier's affirmative defense of a snow
emergency. We also reviewed the Awards presented by the Organization in support of
its claim. Third Division Award 20891 on this property indicates no emergency. Third
Division Award 21678, which is also on this property, states that "Carrier has not in
our judgement made out a persuasive case that emergency conditions prevailed which
would warrant a relaxation of the general principles respecting seniority rights in
seniority districts." The other Awards similarly do not include the proof of immediacy
necessary to support an emergency (for example, Third Division Awards 21222, 21224).
In this instant case, the Carrier provided a statement from Roadmaster Ostberg
which stated in pertinent part:
".
. . as extreme, severe and emergency conditions did prevail for most of
January & February. Time was of the essence. The snow plows had to be
prioritized by the demands of marketing. You could not establish any form
of pattern or routine to which you could maintain snow plow operators
from all districts that needed to be plowed. There was a need for plowing
everywhere - all the time. As one subdivision became `hot' due to revenue
cars sitting for a long period of time, all efforts would be swung that way
to get those cars moving. While we were doing that, not only did mother
nature try to drift the line back in while we were plowing it, but the other
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03-3-99-3-260
lines where we weren't was drifting in deeper and deeper making the
restoration of those lines even tougher when we got to them."
What is clear in this record is that the Organization did not rebut the emergency
with any probative evidence. The Organization simply stated that it rejected the defense
or that the "conditions did not warrant the Carrier's action." The Board does not agree.
The Board must conclude that on January 2, 1997, the Carrier provided sufficient
evidence that it had an existing emergency. As indicated in a dispute on this property,
". . . the right of the Carrier to respond to emergency situations by use of available
employees is well established." (Third Division Award 28683) Accordingly, this claim
must be denied (see also Third Division Award 31086).
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 23rd day of April 2003.