PUBLIC LAW BOARD N0. 1844
Brotherhood of Maintenance of Way Employees
and
Chicago and North Western Transportation Company
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned junior traekmen
to perform overtime service at Chicago Junction on October 18 and 19,
1974 instead of calling Trackman B. Viebrock who was senior, available and willing to perform that service (System File 81-19-102).
(2) Trackman B. Viebrock be allowed seventeen and one-half (17 1/2) hours
of pay at his time and one-half rate because of the aforesaid
' violation." .
OPINION OF BOARD:
At the time this dipute arose, Claimant was employed as a trackman on the
District Gang working in the vicinity of Spooner, Wisconsin. On October 19, 1974
a derailment occurred near Spooner and Carrier found it necessary to call out
section forces to perform overtime work repairing derailment damage. Employees in
the Section Gang assigned to the section on which the derailment took place were
called out but additional forces were necessary. Therefore employees assigned to
the Division Gang working in the area were called to augment the regular section
forces. In calling these Division Gang forces Carrier officials passed over
Claimant and called two junior emp.loyees from his Division Gang. The two junior
employees began working at 11:30 p.m. on Friday, October 18, and worked continually until 5:00 p.m. on Saturday, October 19, 1974. Thereafter, under date
of November 26, 1974 the instant claim was filed
alleging violations
of Rule 4 -Seniority and Rule 31 -- Calls.
The
claim was denied on the property essentially
on the following grounds: (1) Rule 31 was complied with when the section gang
was called
in
seniority order and that Rule does not apply when Carrier has to
go outside the regular section crew for overtime service; (2) the derailment
constituted an emergency and strict application of the rules must yield; (3)
Claimant's seniority was only "a few weeks" over that of the employees called
and therefore de minimus; (4) the employees used were "more available" than
Claimant.
Carrier asserts, without serious contradiction by the Organization, that
on this property.it has been practiced that whenever a derailment occurs on a
M of W section and it is necessary to call men to work at such wreck, the section
men assigned to such section have preference to calls for such work over men not .
assigned to such section, regardless of seniority; and that entitlement to calls
in the section gang is according to seniority order. Carrier errs however when
it deduces from the foregoing that Rule 31 and its seniority order requirements
apply only when members of the section gang on which the derailment occurred are
called. The Rule itself contains no such express limitation nor does the practice
described.supra necessarily require such a restrictive reading of the contract
language. Rule 31 requires that when men in a gang are called they will be
called in seniority order. There is no question concerning the calls made to the
members of the section gang and we assume that Carrier complied with Rule 31 in
that respect. But when Carrier moved outside the section gang and called Division
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Cang forces it did not escape the requirements of Rule 31. We find persuasive
precedent for disposition of the instant case in Third Division Award No. 15840
which held in pertinent part as follows: `
"Neither Claimant nor Peterson had seniority on Section 99
where the work was done and had no right, therefore, to the work.,
Petitioner's position is, however, that once Carrier elects to
recruit from an Extra Gang it is obliged to do so on the basis of
seniority.
"At issue here is not whether Claimant had a superior right
to do this work. He did not. When, however, Carrier chose to seek
an Extra Gang Laborer to do this work, Carrier made that work extra
gang work and was then obliged to assign the work according to
seniority. We have frequently held that where Carrier has the
choice from which class of employees it should select men to perform
work, it is obliged to choose from that class according to seniority.
Awards 6306, 7062."
Once the "resident" section gang had been called and Carrier moved to call Division
Gang employees, it was obligated under Rule 31 to call those Division Gang
employees in seniority order because under the express words of that Rule "the
senior available men in the gang will be called." Carrier avers that Claimant.
was not readily available and the employees it called were more available. But
well established precedent teaches that Carrier is precluded from raising the
defense of availability in such cases unless first it makes a reasonable effort
to call the senior man. `See Third Division Awards 5887, 11888, 16081, 17041,
and 18425. Carrier herein made no effort at. all to call Claimant and is
precluded thereby from contesting his availability. Nor do we find persuasive
the bare unsupported assertions that Carrier operated herein under emergency
conditions. It is true that a recognized exception to strict application of
seniority rules has been recognized in cases of bona fide emergencies but a,
derailment is not per se an emergency which would relax the ordinary obligations
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of Carrier under the Agreement. Persuasive evidence is necessary to establish
the existence of such an emergency and the instant record is devoid of such
evidence. In the facts and circumstances of this case we find that Carrier did
violate Rule 31 when it called out Division Gang employees ,junior to Claimant
to work the derailment on October 18, 1974. The claim is sustained.
FINDINGS:
Public Law Board No. 1844, upon the whole record and all of the evidence,
finds and holds as follows:
1. That the Carrier and Employee involved in this dispute are, respectively,
Carrier and Employee within the meaning of the Railway Labor Act;
2. that the Board has jurisdiction over the dispute involved herein;
and
3. that the Agreement was violated.
.s
AWARD
The claim is sustained.
Dana E. Eischen, Chairman
O. M. Berge, Em yee Member R. W. Schmiege, Carr' -Member
Dated: