Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44048 Docket No. MW-44110
20-3-NRAB-00003-170214
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
(CSX Transportation, Inc.
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned outside forces (R. J. Corman) to perform Maintenance of Way work (protecting traffic at a grade/crossing) at or in the vicinity of Mile Post CA 424.1 on the Hinton Seniority District on March 12 and 13, 2015 and failed to assign Claimant J. Mize thereto (System G30806315/2015-186412 CSX).
As a consequence of the violation referred to in Part (1) above, Claimant J. Mize ‘... shall now be compensated with the same nine
(9) hours expended by the outside contractor employee, at his respective time and one half rate of pay in effect on the dates claimed ***’.”
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 Claimant maintains seniority in various classifications on the Hinton Seniority District, including as a crossing watchman. As a qualified crossing watchman, the Claimant was trained and able to perform work such as the protection of traffic at grade/crossings.
A derailment occurred at a grade/crossing on the Hinton Seniority District involving 26 fuel cars. The Claimant began working at the site on April 28, 2015, providing flag protection. On March 12 and 13, 2015, the Carrier assigned outside forces (R. J. Corman) to perform the crossing watch work.
The Organization filed a claim on April 21, 2015, asserting that the Carrier improperly assigned outside forces to perform Scope-covered work. The Carrier denied the claim, asserting that the work involved was the result of an emergency. The parties were unable to resolve the dispute on-property and the claim is now properly before this Board for final adjudication.
The Organization contends that the assignment of outside forces to perform clear cut Maintenance of Way work constituted a violation of the Agreement which requires a fully sustained award. The Organization contends that the work involved was Scope- covered and the Carrier’s employees, including the Claimant, customarily, traditionally, and historically perform this work.
The Organization contends that while the Carrier claims that it was justified in assigning the work to an outside contractor because of an emergency, the Carrier has failed to present evidence that an emergency existed at the time of the contracting out. The Organization contends that the Claimant’s unrebutted statement establishes that when he had initially begun working at the site of the derailment, both of the tracks were back in service and train traffic was fully restored.
The Carrier contends that the Organization has failed to show a violation of any rules or agreements. The Carrier contends that the work was performed due to an emergency as a result of the massive derailment involving 26 fuel cars and subsequent
explosions and fire. The Carrier contends that all forces were engaged to help in the emergency, but outside contractors were needed to assist with the remedy, including but not limited to, a massive clean-up operation of the cars and spilled fuel.
The Board finds that the Organization has clearly established that the work involved, protection of traffic at grade/crossings, is Scope-covered work reserved to BMWE members. Those employees, including the Claimant, have customarily and traditionally performed this work. In fact, the record establishes that except for the hours in dispute, the Claimant did perform this work.
The Carrier defends its right to assign outside contractors for the disputed hours on the basis that a bona fide emergency existed. It is well-settled that in an emergency, the Carrier has greater latitude in assigning work. In Third Division Award 20527, the standard for an emergency is set forth:
“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.”
The Carrier bears the burden of proving that an emergency existed. In Second Division Award 8093, the Board stated that a “derailment prima facie presents an emergency situation.” In Third Division Award 29859, this Board agreed that a derailment would necessitate immediate action and that the Carrier was entitled to use those employes who were most readily available.
The Organization presented the Claimant’s statement that at the time he was replaced, the emergency had passed. The Claimant stated that both tracks were back in service and traffic was running on them both. He stated that he was providing flag protection for clean up crews hauling out contaminated soil and the number of people working at the site had decreased. The Claimant was replaced by outside contractors 14 days after the derailment.
The Carrier did not rebut this statement and provided no evidence that 14 days after the derailment, an emergency continued to exist. According to the Claimant’s unrebutted statement, traffic had been restored on both tracks and clean-up was occurring. Under the circumstances of the case, the Carrier was not entitled to assign the work to outside forces under the guise of a bona fide emergency.
Claim sustained.
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 18th day of June 2020.