THIRD DIVISION
Award No. 44494 Docket No. MW-45500
21-3-NRAB-00003-180736
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 Welders
C. Wright and C. Torres to perform overtime trackman work between Mile Post 5.0 and Mile Post 5.5 at the South Trim in Argentine Yard on the Emporia Subdivision on May 24, 2017 to May 25, 2017 instead of assigning senior headquartered Trackmen R. Hernandez and G. Marquez thereto (System File 2405-SL33-1752/14-17-0226 BNS).
As a consequence of the violation referred to in Part (1) above, Claimants R. Hernandez and G. Marquez shall now each be compensated nine (9) 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.
The facts of the case are largely undisputed. On May 24, 2017 at approximately 0845 hours, BNSF train HKCKMEM1-24 derailed 15 cars while pulling eastbound out of the bowl in the Argentine Yard. This derailment resulted in an approximate lost production of 300 cars humped and 500 cars trimmed, resulting in delayed BNSF switching operations. In order to promptly restore service, BNSF supervision assigned Kansas City Common Point Headquartered Welders Corey Wright and Cecil Torres to assist with repairing the track damage caused by the derailment, as they were the closest qualified available employees. At the time, Claimants were performing service at their assigned location in the Murray Yard. Employes Wright and Torres expended a total of nine overtime hours in the performance of this work.
Applicable provisions of the Agreement state as follows in pertinent part: RULE 33 - OVERTIME SERVICE * * *
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.
As the Organization sees it, the South Trim in Argentine did not have a right to perform work on another section/district/area /location, in this instance the Common Point, to the exclusion of employes regularly assigned there. It cites numerous awards which have enunciated this principle. The Organization provided a signed eyewitness statement from employe R. Johns (Attachment No. 1 to Employes' Exhibit "A-1"), with a detailed account of the overtime hours worked by the junior mobile employes on the date and at the location in question. The Organization notes that the Carrier has the burden of proving there was an emergency, and must make a reasonable effort to call and use the employes stipulated by the Agreement rules.
The Carrier defended against the claim by asserting that: (1) the Organization failed to meet its burden of proof; (2) the overtime work performed involved thermite welding; and (3) the overtime work performed in this instance was done in connection with an emergency situation.
The Carrier maintained that Claimants were not assigned to the disputed work location and, therefore, did not stand to be called for overtime service per Rule 33(i)—Preference to Overtime. It further asserted that it has greater latitude in emergency situations to assign employees as it deems necessary.
The record in this case clearly establishes the existence of an emergency. There was a 15 car derailment with heavy impact on the Carrier’s operations. In such cases, the Carrier has a great deal of leeway in addressing the emergency as efficiently and effectively as possible.
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.