THIRD DIVISION
Award No. 44498 Docket No. MW-45964
21-3-NRAB-00003-200515
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 employes R. Haile, II, W. Gavisk and T. Williams to perform overtime service repairing track in the Springfield Yard on December 29, 2018 instead of assigning Mr. P. Sorrells thereto (System File 493-SL33- 1911/1 4-19-0122 BNS).
As a consequence of the violation referred to in Part (1) above, Claimant P. Sorrells shall now be compensated three (3) overtime hours at his respective rate 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.
It is undisputed that on December 29, 2018, the Carrier assigned junior employes R. Haile, II, W. Gavisk and T. Williams to perform overtime service repairing track in the Springfield Yard instead of assigning the Claimant. At the time, the Claimant was assigned and working as a foreman. The Organization grieved, maintaining that the Claimant was entitled to the work because of his superior seniority at the location involved under the Agreement.
Applicable provisions of the parties’ Agreement states as follows: RULE 2 – SENIORITY
2(a) - Establishment of Seniority. Except for track, bridge, tunnel and crossing watchmen/flagmen, who do not establish seniority as such, seniority shall be established as Track Supervisor, Motor Track Inspector or in one of the following groups: * * *
Group 3. -
Class 1: Section and Fence Gang Foremen and Extra Gang Foremen, excluding Extra Gang Foremen in charge of rail laying gangs or mechanized tie gangs.
Class 2: Assistant Section Foremen, Assistant Extra Gang Foremen and Assistant Fence Gang Foremen.
Class 3: Trackmen * * *
Group 9. -
Class 1: Truck Driver, International Model 850 chassis, with 17 foot all steel body and rail carriers. Equipped with
I.M.T.C.O. Model C-7000 railroad special crane with airbrakes, G.V.W. 43000 lbs.; or equivalent. (See Appendix 10) * * *
RULE 33 - OVERTIME SERVICE * * *
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.
The Organization maintains the Claimant was entitled to be assigned the contested overtime based on his superior seniority as a foreman at the location involved. It is undisputed that the Claimant was the senior foreman assigned at the location and that the work was performed by the named junior employes. Rule 2 of the Agreement establishes the different seniority groups encompassed under the Agreement. The Organization points out that nowhere within Rule 2 or any other provision of the Agreement is there any mention of an independent foreman position.
The Organization takes the position that the record is insufficient to establish an emergency. There was no evidence of any delay, and the Carrier waited over a day to effect the needed repairs. In the view of the Organization, the Carrier has failed to adequately support its argument of emergency.
The Carrier maintains emergency repairs were required following a derailment in the Springfield Yard. It assigned Springfield headquartered Section employees Gavisk and Haile, as well as Springfield headquartered Motor Track Inspector Williams. The Claimant was an Independent Foreman, not a Section Foreman, and in the Carrier’s view, a Section Foreman was needed to make the
repairs in question. The Carrier notes Claimants did not lose any pay, since they worked four and a half hours of overtime on the day in question.
The Carrier has not been able to adequately support its assertion that there was an emergency in this case. There was no evidence of any delay in operations, and the Carrier waited over a day to effect the repairs in question. An emergency entails an urgent situation where immediate action is required. The fact that the Carrier waited so long to complete the repairs establishes that the situation was not urgent and immediate action was not required. As a result, the Carrier’s defense fails.
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 29th day of July 2021.