Form I NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40079
Docket No. MW-40702
09-3-NRAB-00003-080499
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Chicago and
( North Western Transportation Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned outside
forces (Rossi Construction and Central Railway) to perform
Maintenance of Way and Structures Department work (snow
removal) at switches in the Hump Yard area of the Proviso Yards
on February 13, 2007 (System File S-07010-355/1474916 CNW).
(2) The Agreement was further violated when the Carrier failed to
furnish the General Chairman with an advance notice of its intent
to contract out the aforesaid work or make a good-faith attempt
to reach an understanding concerning such contracting as
required by Rule 1(b).
(3) As a consequence of the violations referred to in Parts (1) and/or
(2) above, Claimants J. Alexander, A. Ayala, D. Bragg, M. Corral,
M. Carrasco, R. Carreon, J. Guzman, R. Perez, R. Preciado and
A. Orozco shall now each be compensated for thirteen (13) hours
at their applicable time and one-half rates of pay."
FLINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1
Page 2
Award No. 40079
Docket No. MW-40702
09-3-NRAB-00003-080499
The carrier or carriers and the employee or employees involved in this dispute are
respectively carrier and employee
approved June 21,1934.
This Division of the Adjustment Board leas jurisdiction over the dispute involved
herein.
the meaning of the Railway Labor Act, as
Parties to said dispute were given due notice of hearing thereon.
On February 13, 2007, the Proviso Yards in the Chicago area experienced a
heavy snowfall. Historical weather data from an internet site provided by the Carrier
shows that on that day, nine inches of snow fell in the area. On that date, the Carrier
supplemented its forces with five employees from an outside contractor (Rossi
Construction) and five employees from Central Railway who rendered 13 hours of
service each (for a total of 130 hours) to keep switches clear in the Hump Yard area of
Proviso Yards.
According to Manager Track Maintenance J. Goben:
"[D]uring the snow all employees that were laid [off] that could be
contacted were called back to work. All employees in claim where [sic]
working and were on shifts of 12 on and 12 off, for their own safety
they needed time off for rest. [E]xample Mr. Alexander worked 8
hours with 8 hours OT and Mr. Orozco worked 8 hours with 9 hours
OT on the 13th of Feb."
The Organization asserts that the Carrier improperly contracted out scope
covered work. The Carrier defends asserting an emergency existed.
Third Division Award 20527 sets forth the standard for an "emergency;
"We have heretofore defined an emergency as `an unforeseen
combination of circumstances which calls for immediate action'
(Award 10965) . . . . [I]t is well established that the Carrier, in an
emergency, has broader latitude in assigning work than under normal
circumstances; in an emergency Carrier may assign such employees as
its judgment indicates are required and it is not compelled to follow
normal Agreement procedures."
Form 1
Page 3
Award No. 40079
Docket No. MW-40702
09-3-NRAB-00003-080499
As the Organization argues, heavy snowfalls in February in the Chicago area are
not unusual. But a nine inch snowfall which kept the Carrier's forces working as many
hours as they did (shifts of 12 hours on and 12 hours off and some with more overtime)
which still proved insufficient to perform the work to the extent that ten more
employees from the contractor and the Central Railway had to be called in certainly
goes beyond what could reasonably be expected even for the Chicago area in February.
The conditions caused by the snowfall on February 13, 2007 constituted an
emergency. Manager Track Maintenance Goben states that ". . . during the snow all
employees that were laid off that could be contacted were called back to work." This is,
therefore, a case where an emergency existed; the Claimants worked extended shifts;
laid off employees were contacted to report to work; and, because of the emergency, the
Carrier had the latitude to assign work to strangers to the Agreement.
therefore be denied.
AWARD
Claim denied.
ORDER
claim shall
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Clairnant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of November 2009.