THIRD DIVISION
Award No. 44493 Docket No. MW-45495
21-3-NRAB-00003-180728
The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
PARTIES TO DISPUTE: (
(BNSF Railway Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier assigned junior mobile employes T. Huffman and A. Sam to perform track destressing work at or near Mile Post 532 on the Seligman Subdivision of Southwest District 600 on May 22, 2017 instead of calling and assigning senior headquartered employes B. Collier and J. DeVries thereto (System File 2417-SL33- 1754/14-17-0221 BNS).
As a consequence of the violation referred to in Part (1) above, Claimants B. Collier and J. De Vries shall now each be compensated for six (6) hours at their respective overtime 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.
On May 22, 2017, the Carrier assigned junior mobile employes T. Huffman and
A. Sam to perform overtime track distressing work near Mile Post 532 on the Seligman Subdivision of the Southwest District 600 instead of calling and assigning the Claimants, the senior headquartered welders. At the time of this dispute, Claimants were fully qualified and willing to perform the overtime work involved here and would have performed it had the Carrier afforded them the opportunity to do so. The Carrier relies on the exception for emergencies; a thermal misalignment resulted in a main track being taken out of service, causing a delay for nine trains.
Applicable provisions of the Agreement state as follows in pertinent part: 33(f) - Work Required on a Day which is Not Part of Any Assignment.
Where work is required by the Carrier to be performed on a day which is not a part of any assignment, it may be performed by the senior qualified and available employe off in force reduction or working in a lower class who will otherwise not have 40 hours or work that week; in all other cases by the regular employe. * * *
33(i) Preference To Overtime Work. Except when employes are utilized as provided in Rule 33 - (f), employes assigned to sections, work districts, specific areas and/or locations shall be given preference in relative seniority order among employes of the gang, work district or location to overtime work to be performed within such section, district, area or location. Employes assigned to road gangs, such as Track Extra Gangs and B&B Gangs, Machine Operators, etc., shall have preference to overtime work in relative seniority order in connection with work projects to which they are assigned.
It is a well-established principle that employes regularly assigned to a section/district/area/location, do not have a right to perform work on another section/district/area/location, in this instance the Seligman Subdivision, to the
exclusion of employes regularly assigned to the section/district/area/location where the work was performed.
Signed statements from Claimants provided a detailed account of the overtime worked by the junior mobile employes on the date and at the location involved here, proving that the overtime at issue occurred as claimed.
In Award 24440, the Board defined an emergency as: " ... the sudden, unforeseeable, and uncontrollable nature of the event that interrupts operations and brings them to an immediate halt. ***" Awards 40767 (BNR), 40774 (BNR) and 40777 (BNR) establish that the Carrier has the burden of proving the existence of an emergency. In its view, the situation failed to meet this definition.
It notes that the Claimants were on their way at the time the junior employes were assigned, and would have gotten there within the hour. The work itself only took three hours to complete, so the statistics about the number of trains coming in 14 hours was meaningless.
On May 22, 2017, a Track Supervisor identified a thermal misalignment (tight gauge) on Main Track 1 at MP 532 on the Seligman Subdivision. In order to protect the area and prevent a potential derailment, the Track Supervisor took the track out of service, which shut down Main Track 1. This shutdown reduced the heavily congested area from double track to single track for a total of 13 miles. As a result, 18 scheduled trains—proceeding from both directions—were required to meet/pass one another, which resulted in the delay of nine trains, two of which expired on their hours of service. The Carrier contends this situation constituted an emergency.
In order to promptly restore rail service in the area, BNSF supervision assigned Mobile Welders T. Huffman and A. Sam to make repairs by destressing the rail. Claimants were not assigned to this task because they were working approximately 60 miles from the disputed work location. The Service Interruption Report cited tight gauge as the reason for closing the main track. It noted that the Claimants were in route.
Webster’s Dictionary of the English Language defined “emergency” as “a sudden, urgent, unforeseen occurrence requiring immediate action.” Award 24440 defined emergency as “the sudden, unforeseeable and uncontrollable … event that interrupts operations and brings them to an immediate halt.” Award 10965 defines ‘emergency’ as “an unforeseen combination of circumstances which calls for immediate action.” These definitions share a preoccupation with urgency and a definitive need for immediate action.
Operations were stalled on a large enough scale to make the situation urgent, and to require immediate action. The Carrier properly considered this to be an emergency. With nine trains delayed and two expiring on their hours of service, the situation called for immediate action. Though Claimants were only an hour away, the Carrier was not required to allow delays to pile up an hour before taking action. With only one track available to heavy traffic accustomed to two main tracks, the situation could only grow more serious with delay.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 29th day of July 2021.