Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 43534 Docket No. MW-42974 19-3-NRAB-00003-150163
The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Missouri Pacific Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to assign senior employes D. Lefholz and M. McAllister to perform overtime track repair work at Mile Post 180.06 on the River Subdivision on October 22, 2013 and instead assigned Track Inspector S. Warren and junior employe J. Hazlet thereto (System File UP621BT13/1597063 MPR).
(2) As a consequence of the violation referred to in Part (1) above, Claimants D. Lefholzand M. McAllister shall each be compensated for three (3) hours at their respective time and one-half rates of pay."
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.
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 Claimants have established and maintain seniority within the Carrier's Maintenance of Way Department. On October 22, 2013, ARSA Supervisor Warrenwas called out to investigate a track light. Warren discovered a broken rail at MP 180.06. At 9 pm, Warren called J. Hazlet, a Ballast Regulator Operator on Gang 1817 in the general area. Hazlet worked for approximately three hours while Warren provided an extra set of eyes for safety. There is no dispute that the Claimants are senior to Hazlet.
The Organization filed a claim on December 20, 2013, stating that the Claimants should have been allowed to work overtime on October 22, 2013. The Carrier denied the claimon the basis that the broken railcreated an emergency. The claimwas further processed on property, but the parties were unable to reach resolution. It is properly before this Board for final adjudication.
The Organization contends that the Claimants were entitled to the overtime assignments, but that the Carrier failed to make any attempt to assign Claimants to the overtime work. The Organization contends that the Carrier instead assigned a nonAgreement employee and a junior employee to perform after hours track repair. The Organizationcontendsthatthe Claimantswere entitledto thebenefits oftheirseniority, one of the most important cornerstones of the collective bargaining agreement. The Organization contends that the Carrier failed to produce credible evidence that an emergency existed, so it has failed to prove its affirmative defense. Finally, the Organization contends that the Claimants are entitled to the requested remedy.
The Carrier contends that the need to repair the broken rail created an emergency, and that it has greater latitude when faced with an emergency to assign overtime other than by seniority. The Carrier contends that it called an employee to perform the work who was close to the location, qualified, and available. The Carrier further contends that the Claimants were not available to perform the overtime service.
There is no doubt that seniority is a valuable property earned by employees, which must be respected by the employer. Third Division Award 24480; First Division Award 15128. However, if the Carrier can demonstrate that an emergency existed, it has greater latitude in calling employees for repair work. Third Division Award 20310.
The Carrier bears the burden of proving that an emergency existed. This Board hasdefinedanemergency as"anunforeseencombinationofcircumstancesthatcallsfor immediate action." Third Division Award 20527; Third Division Award 10965. This Board has also suggested that an event which is neither sudden nor unforeseeable, such as a heavy snowstorm, is not an emergency that would permit bypassing senior employees.ThirdDivisionAward29164.Similarly,thisBoardfoundthat"abrokenrail per se does not constitute an emergency." Third Division Award 20310. Repairs that must be made with urgency do not constitute an emergency, as this Board has defined the term. The Carrier has not presented evidence to support its claim that this broken rail created an emergency. Therefore, it was incumbent on the Carrier to respect the Claimant's seniority rights.
It is undisputed that the Claimants were senior to Hazlet and Warren. Nonetheless, the Carrier made no effort to contact the Claimants for the overtimework. When the Carrier made no effort to contact the Claimants, it cannot later claim that they would have been unavailable. The Claimants alleged unavailability was not the reason they were not called, and the Carrier cannot bolster its decision after the fact with additional reasons not considered at the time.
AWARD
Claim sustained.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 27th day of March 2019.
CARRIER MEMBERS' DISSENT
to
THIRD DIVISION AWARD 43534
(Referee Kathryn A. VanDagens)
The core issue in dispute is whether the Carrier was justified in calling out available, qualified employees who could rapidly respond to the emergency event. Based on the evidence of record, we find the Majority's reasoning misguided and its decision wrong.
In support of its decision, the Majority relies upon Third Division Award 20310. That Board held "a broken rail per se does not constitute an emergency." Yet simple review of Award 20310 reveals that Board recognized an event, such as broken rail, could qualify as an emergency when there was a showing of "location or significance" affecting the Carrier's operations. In the present case, the Carrier provided unrefuted statements from the Manager which identified that highpriority train traffic was stopped as a direct result of this broken rail.
Because it is well-established in this industry that an interruption to service
constitutes an emergency, we must necessarily conclude the Majority has reached
the wrong decision in this dispute. While the Carrier will adhere to the Majority's
order, such will not be considered as precedent in future cases. Respectfully
dissenting,
March 27, 2019
Jeanie Arnold Jeanie L. Arnold