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.
This dispute concerns the Carrier's use of Federated Craft Welding Gang 4442 to change broken rails instead of Section Gang 5042, and involves Rule 9 of the UP-BMWE Agreement and the Note in the Implementing Agreement between the Carrier, the Organization and the International Brotherhood of Boilermakers, Blacksmiths, Iron Ship Builders, Forgers and Helpers (IBB) which provide, in pertinent part:
The Claimants were assigned to Section Gang 5042 on December 11, 2007, when the Carrier used Federated Craft Welding Gang 4442 to replace broken rail at two locations on the Powder River Subdivision. The Organization argues that this is routine track maintenance work reserved to Track Subdepartment employees under Rule 9, and that no welding or other work listed in the Implementing Agreement was performed on this date, citing Third Division Award 36933. The Carrier contends that the Organization did not meet the heavy burden of proof required in a jurisdictional dispute case, relying on Third Division Award 32646. It asserts that the broken rails constituted an emergency situation, permitting it to Form I Page 3
utilize qualified employees available on their assigned shift rather than being obliged to call employees on overtime, citing Third Division Awards 22129, 22855, 22920 and 37550, and that the functions performed were part of the retained rights of the Federated Craft Welders. The Organization maintains that the Carrier's defenses are without merit because broken rails, which commonly occur, do not constitute an emergency, and no welding work was performed in this case.
A careful review of the record convinces the Board that the Organization has established that the disputed work involved the routine track maintenance function of replacing broken rail which is reserved to Track Sub-department employees within the scope of the Agreement, and that no welding work was involved. In the absence of the Carrier establishing that the need to change out broken rails created an "emergency" situation, or that the actual work performed fell within the listed functions of the Welders in the Note to the Implementing Agreement, the claim must succeed. The Claimants are entitled to compensation for the hours worked by the Federated Craft Welding Gang replacing broken rails at Mile Posts 231 and 235 on December 11, 2007.
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.
