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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimants established and hold seniority as a Bridge and Building ("B&B") Foreman and Bridgeman, respectively on the Palestine Seniority Division, B&B South Palestine Subdivision Seniority Roster. At all relevant times associated with this dispute, the Claimants were assigned to Palestine Division B&B Gang 3599.
On or about September 10 through and including October 1, 2000, the Carrier assigned employees from the DeQuincy Seniority Division to perform bridge work on the Palestine Seniority Division. Specifically, employees assigned to DeQuincy Division B&B Gang 2244 crossed seniority division lines in order to replace stringers on a main line bridge located in the Palestine Division's territory. It is undisputed that DeQuincy Division Gang 2244 employees hold no seniority on the Palestine Division. DeQuincy Division Gang 2244 employees worked ten hours per day throughout the claim period for a total of 280 hours of straight time. It is the Organization's position that the Carrier's action in this regard violates, among other Rules, Rule 2(a) "Seniority Rights," which reads, in relevant part, as follows:
The Carrier defends its action by noting that the crossing of seniority districts was necessary for "safety reasons" as well as a shortage of manpower. In addition, the Carrier asserts that the clear language of Rule 15 contemplates the temporary utilization of employees from other seniority divisions in the circumstances at hand. More specifically, the Carrier denial of March 21, 2002 noted: Form 1 Award No. 39303
The issue before the Board is not a matter of first impression. Indeed, over the past 38 years, 21 Awards have been rendered involving the same parties to this dispute, each holding that the Carrier's decision to cross seniority division lines violated Rule 2. In addition and relevant to the specific issue before the Board, numerous Awards determined that Rule 6 does not negate the mandate set forth in Rule 2 nor provide the Carrier with the unfettered right to transfer employees across seniority districts. However, a number of these same Awards recognize the Carrier's right under Rule 6 to temporarily transfer employees pursuant to Rule 2 in cases of a "bona fide emergency." However, it becomes the Carrier's burden of proof to demonstrate, by substantial evidence, that an "emergency" actually existed at the time it made its determination to transfer employees across seniority lines. (See, e.g., Third Division Awards 28852, 30076 and 32504 together with cases sited therein.) Form 1 Award No. 39303
The Carrier has not demonstrated the existence of a bona fide emergency in the instant matter. In this regard, it is well accepted that any claimed emergency must be bona fide where time is of the essence. While the Carrier implied the existence of an emergency, it was unable to conclusively establish that one existed at the relevant time period.
Finally, Awards issued by the Third Division emphasize the necessity to comply with Rule 2 (except in those cases where a true emergency exists) making it clear that "full employment" is an insufficient criterion for the Board to decline the award of monetary damages. (See, e.g., Third Division Award 32504.)
Given the foregoing, we find and conclude that the Carrier violated Rule 2. In the on-property handling of this case, the Carrier asserted that the instant claim is duplicative of another filed over the same fact pattern. We agree that the Carrier is not required to pay duplicative claims. (See Third Division Award 28852). Accordingly, the Award will reflect this holding.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.