THIRD DIVISION
Award No. 44600 Docket No. MW-45517
22-3-NRAB-00003-180276
The Third Division consisted of the regular members and in addition Referee James M. Darby 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 Murray Yard, Common Point Structures Gang members B. Minich, S. Waisner, D. Creason, J. Burstert and E. Graham to perform bridge maintenance work at the bridge at Mile Post 72.5 on the Emporia Subdivision of Kansas District 700 on September 23, 2016 instead of assigning Messrs. K. Harris, S. Stevens, M. Collins,
J. Jones, K. Thomas and P. Linder thereto (System File 2404- SL33-16131/14-17-0053 BNS).
As a consequence of the violation referred to in Part (1) above, Claimants K. Harris, S. Stevens, M. Collins, J. Jones, K. Thomas and P. Linder shall now each be compensated for ten (10) hours at the applicable overtime 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.
The record shows that on September 22, 2016, Bridge Inspector Bumgarner and Structures Supervisor Gibson discovered a defective cap on Pier Two (2) at BR
72.5. They decided to place a 25 MPH slow order on the bridge overnight. On September 23, 2016, from 07:00 to 17:30 at MP 72.5 on the Emporia Subdivision of Kansas District 700, the Carrier assigned the Murray Yard, Common Point, Structures Gang (already on-duty) to go to the Bridge at MP 72.5 and perform maintenance. The Claimants are part of the Mobile Structures Gang that the Organization claims is the assigned gang to work this territory and should have been called off their rest days to perform these duties. Specifically, the Organization asserts the Murray Yard, Common Point, Structures Gang are not regularly assigned to perform work on the Emporia Subdivision of Kansas District 700 as part of their assignments on the Common Point. Claimants were fully qualified, available and willing to perform the overtime work involved here had the Carrier afforded them the opportunity to do so. The Organization also disputes that this incident constituted an emergency situation.
In response, the Carrier contends that there is nothing in Rule 33 preventing it from assigning the headquartered Murray Yard gang to the bridge repair work. Additionally, even if Rule 33 prevented such assignment, this was an emergency situation warranting the Carrier’s determination to assign the work to the Murray Yard gang, which was on-duty, available and qualified to address the emergency situation.
This Board has held in numerous circumstances that in an emergency “Carrier may assign such employees as its judgment indicates are required and it is not compelled to follow normal Agreement procedures.” See, Third Division Award No. 20527. Additionally, we cannot accept the Organization’s interpretation that an emergency can be present only when it forces the Carrier to completely halt service. While this Board has in the past described an emergency in such narrow terms, it has more recently defined it as “[a]n unforeseen combination of circumstances which calls for immediate action.” See, Third Division Award No. 36982.
It is unnecessary for the Board to resolve whether the instant situation constituted a true emergency, because even if it were the record does not disclose that the Carrier made any reasonable effort to utilize the Claimants herein, who as part of the Mobile Structures Gang are regularly assigned to this type of repair work. In this regard, as set forth by this Board in Third Division Award Nos. 21222 and 21224:
The ability to utilize the Claimants was enhanced here by the fact that, notwithstanding the alleged emergency conditions, the Carrier waited until the following day to assign the work. The record supports a conclusion that the Carrier’s action herein was driven more by convenience and cost, rather than an effort to reasonably consider all of its options under the Agreement language.
Accordingly, for all these reasons the claim is sustained. With respect to remedy, the Carrier acknowledges that one of the reasons the Claimant’s were not called for this work is due to the fact it was their “rest day.” Therefore, contrary to the Carrier’s contrary contention, they are entitled to be paid straight time for the lost work opportunity. To the extent any of the Claimants ultimately earned compensation for performing other work that day, the Board agrees with the view expressed in Third Division Award No. 40567 that “[w]hile it may seem unfair to compensate an individual who already received pay for the time claimed, it would be even more of a miscarriage of justice to permit an employer to violate the terms of the parties’ agreement with impunity.”
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 October 2021.