BROTHERHOOD OF MAINTENANCE OF )
UNION PACIFIC RAILROAD COMPANY )
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
Appeal by the Organization on behalf of C&NW District T-4 employees J.F. Hasler, a
foreman; J.D. Franks, an assistant foreman; K. Jiltivec, an assistant foreman; T.J.
Richeson, a machine operator `B;" M.A. Vaughan, a trackman; KG. Hart, a trackman;
L.A. Rodgers, a trackman; G. Loney, a trackman; R.D. Jacobi, a machine operator
"Common;" and W.O. Harrington, a machine operator "Common," hereinafter referred to
as "the Claimants," regarding the assignment of track repair work on Sunday, June 15,
2003 to System Switch Gang employees 9071, hereinafter referred to as "the System
Gang," at Mile Post 187.0
in
Ames, Iowa.
FINDINGS:
The following facts are undisputed: Claimants, CN&W employees who hold
seniority on District T-4, are covered by the November 1, 2001 Agreement, hereinafter
referred to as "the Agreement," between the Organization and Carrier. On Sunday, June
15, 2003, early in the morning, Carrier had a derailment at MP 187.0 on the Boone
Subdivision located in Ames, Iowa- Several cars were derailed. MP 187.0 is located on a
Seniority District T-4 territory, where Claimants are regularly assigned to work Monday
through Friday on track maintenance pursuant to the terms of the Agreement.
PLB No. 7100
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At the time of the derailment, Claimants were working in the Cedar Rapids, IA
area. Carrier assigned the repair track work to System Gang forces who were working
near Cedar Rapids. The System Gang is covered by the Consolidated System Gang
Agreement, which is incorporated into the November 1, 2001 Agreement as Appendix
13.
The Organization argues Claimants should have been assigned to perform the
track repair work instead of the System Gang because the work involved "was nothing
more than track repair work." Pursuant to the Scope of the Agreement provision, all
work related to the construction, maintenance, repair and dismantling of track is work
reserved for district forces. The Organization asserts the work in question has been
customarily and historically performed by and is contractually reserved for C&NW Track
Subdepartment employees such as the Claimants in accordance with Rules 1, 2, 3, 4, 5,
7, 23 and 31 of the Agreement which states, in part, the following:
RULE-SCOPE
A. The rules contained herein shall govern the hours of service, working
conditions and rates of pay of all employees in any and all subdepartments of
the Maintenance of Way and Structures Department, (formerly covered by
separate agreements with the C&NW, CStPM&O, CGW, FtDDM&S,
DM&CI and MI) represented by the Brotherhood of Maintenance of Way
Employes.
B. Employees included within the scope of this Agreement in the Maintenance of
Way and Structures Department shall perform all work in connection with the
construction, maintenance, repair and dismantling of tracks, structures and
other facilities used in the operation of the Company in the performance of
common carrier service on the operating property. This paragraph does not
pertain to the abandonment of lines authorized by the Interstate Commerce
Commission.
RULE 2- SUBDEPARTMENTS
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The following subdepartments are within the Maintenance of Way and Structures
Department.
C. Bridge and Building Subdeparhnent
D. Track Subdepartment
E. Roadway Equipment Repair Subdepartment
(emphasis added)
1. Track Supervisors
2. Track Foreman
3. _Assistant Track Foreman
4. Truck Drivers
5. Welders
6. Welders Helpers
7. Trackmen and Crossing Watchmen
8. Machine Operators
9. Assistant Machine Operators
10. Track Walkers
(emphasis added)
RULE 3- CLASSIFICATION OF WORK
B. An employee directing the work of employee and reporting to officials of
the Company shall be classified as a Foreman.
C. An employee assigned to assist a Foreman or Track Supervisor in the
performance of his duties shall be classified as an Assistant Foreman.
D. An employee assigned to perform the work of constructing, repairing,
maintaining or dismantling of roadway and track and other similar type
work shall be classified as a Trackman.
I. An employee qualified and assigned to the operation and servicing of
machines used in the performance of Maintenance of Way and Structures
Department work shall be classified as a Machine Operator.
RULE 4-SENIORITY
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D. Rights accruing to employees under their seniority entitle them to
consideration for positions in accordance with their relative length of service with the
Company.
RULE 5- SENIORITY DISTRICTS
Seniority Districts are identified as follows:
B&B
B-2
B-3
B-4.
B-7
B-8
B-9
Tracks
T-2
T-3
T-4.
T-7
T-8
T-9
A- Separate seniority in the B&B and Track Subdepartments shall be
established in the following classes:
Track Supervisors
Track Foremen (including Classes A, 1,1 and 3)**
Assistant Foremen (including Assistant Foremen-Truck
Drivers)
Truck Drivers*
Trackmen and Crossing Watchmen*
* Treated equal in class for promotion purposes.
* * Class A-Foremen on track gangs of 18 or more
Class 1- Foremen an track games of less than 18
Class 2-Section Foremen, Headquartered Maintenance Foremen, and B&B
Foremen
Class 3-Flagging
B. Supplemental rosters,
(emphasis added)
where applicable, shall be maintained separately for the
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following classification for the Seniority Districts identified in Rule 5:
1. Track Machine Operators divided by classes and Assistant
Machine Operators
2. Track-B&B Machine Operators and Assistant Machine Operators
3. Scale Inspectors
4. Welders including Helpers
5. Structural Iron Workers
6. Work Equipment Mechanic
7. Track Walkers.
(emphasis added)
RULE 23-
L. Work on unassigned dates-Where work is required to be performed on a
day which is not a part of any assignment, it may be performed by an available extra or
unassigned employee who shall otherwise not have 40 hours of work that week; in all
other cases by the regular employee.
(emphasis added)
RULE 31- CALLS
A. Employees called to perform work not continuous with regular work
period shall be allowed a minimum of two hours and forty minutes at rate and one-half,
and if held o duty in excess of two hours and forty minutes shall be compensated on a
minute basis for all time worked. When necessary to call employees under this rule, the
senior available employees in the gang shall be called
The Organization also argues the System Gang's contractually reserve. work
involves large projects assigned without regard to district boundaries, which generally
involves extensive timbering and surfacing track and switches, new track construction,
rail renewal projects and reballasting tracks. System Gang work is covered by the
Consolidated System Gang Agreement, Section 1, provides, in pertinent part, the
following:
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Effective January 1,1998 all system gang operations listed hereinafter were combined on
UPRR, WPRR, SPRR and D&RGW territories and have been subject to the Collective
bargaining Agreement between UPRR and BMWE;
SYSTEM OPERATIONS
System Steel Gang Work System Curve Gang Work
System Switch Gang Work System Welding/Glue Gang Work
System Tie and Ballast Gang Work System Rail and Concrete Tie Gang Work
System Surfacing & Lining Gang Work System New Construction Gang Work
System Pick-Up and Distribution Gang Work
Effective June 1, 1998, the territory and employees of the (C&NW) will be added to and
made part of these consolidated system gang operations!
The Organization argues a derailment, in and of itself, does not constitute an
emergency. It asserts the derailment on June 15, 2003, did not create an emergency
situation, as alleged by Carrier. It claims Carrier failed to meet its burden of proof to
establish that an emergency situation occurred. According to the Organization, the track
involved in the derailment is a double mainline, i.e., there are two tracks. The derailment
occurred on only one main track and it was cleared before the System Gang arrived to
perform the track repair work. Furthermore, according to the Organization, the trains
continued to operate while the System Gang performed their work.
Even if there was an emergency situation, the Organization argues, Carrier had a
contractual obligation to call Claimants for overtime work before assigning the work to
the System Gang. The Organization asserts all the Claimants are qualified and were
' `SPRR' refers only to the `Western Lines' of the Southern Pacific Transportation Company.
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available to perform the work in dispute.
Therefore, the Organization requests for the Claimants to be compensated 15 and
one-half hours (15.5 hours) of work performed by the System Gang.
In response to the Carrier's defense the remedy sought is excessive, the
Organization asserts Carrier had in its possession all relevant payroll records to disprove
the Organization's claim and it failed or refused to produce any of the relevant records
during the on property handling of the grievance. The Organization also asserts the
payroll record submitted to the Board should not be considered because they were not
previously introduced on property.
Carrier, on the other hand, argues the Organization failed to establish a prima
facie case the Agreement was violated. Carrier urges it is undisputed that a derailment
occurred and asserts that "a derailment is an emergency situation." It also alleges in an
emergency situation Carrier is accorded great latitude in assigning work on the restoration
of the tracks.
Carrier urges in the absent of any restriction imposed by Agreement or law, it
retains the managerial right to assign work as it deems fit. The System Gang was utilized
to restore and repair the track to service due to a derailment. Accordingly, Carrier argues,
the above-cited rules by the Organization do not apply to the repair track work in dispute.
Carrier also contends there was no crossing of seniority lines because the System
Gang was working in Ames, near Cedar Rapids, which is a territory where the System
Gang has a contractual right to perform work. According to Carrier, the Organization
failed to establish Claimants were available for work or in the immediate area.
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With regard to the remedy sought by the Organization, Carrier asserts it is .
excessive because not all members of the Switch Gang worked 15.5 hours performing the
work in dispute.
After reviewing the record facts, we find that the grievance must be sustained.
We find that the record evidence shows the repair track work performed by the System
Gang on Sunday, June 15, 003, has been historically performed by and is contractually
reserved for district forces such as Claimants. Therefore, absent an emergency situation,
the work should have been performed by Claimants. Carrier's assertion the work in
dispute was assigned to the System Gang due to an emergency situation is an affirmative
defense. It is well established the burden of proof to establish the validity of an
affirmative defense rests with the party asserting it. (Third Division Awards 30456,
30928 and 32414).
A review of the record in this case shows Carrier failed to meet its burden of
proof. An emergency situation as "a sudden, unforeseeable and uncontrollollable nature
of the event that interrupts operations and brings them to an immediate halt." (Third
Division Award 24440). It is fundamental in an emergency situation Carrier is afforded
great latitude in assigning work than under normal circumstances. Thus, in an
emergency, Carrier may assign employees as its judgment deems appropriate and is not
compelled to follow normal Agreement procedures. (Third Division Award 36982).
Notwithstanding, a mere assertion that an emergency occurred is not sufficient to
establish the existence of an emergency.
Here, Carrier has failed to cite any legal authority to support its contention that a
Award 5
derailment is per se an emergency situation. The Organization has refuted all assertions
that an emergency existed. As part of its prima facie case, the Organization has shown
there was no interruption of service due to the derailment. Specifically, the Organization
has shown that the trains continued to operate on one main track while gangs and
maintenance crews performed their work. The Organization has also shown by the time
the System Gang arrived to perform the work in dispute after the derailment was cleared.
Stated simply, in the instant case, the record is void of any probative evidence to
show the derailment disrupted operations or to show that the "emergency" conditions
were still applicable when the System Gang arrived to perform the track repair work in
dispute. In this regard, we note the line of authority in an emergency situation does not
apply to "a longer period of corrective action" needed after the emergency situation has
passed.
Similarly, we find that Carrier failed to meet its burden to show it attempted to
contact Claimants before assigning the work to the System Gang. They were entitled to be
called for the overtime work assigned to the System Gang pursuant to Rule 31 of the
effective Agreement. We reject the Carrier's assertion the Organization bears the burden
to establish that the Claimants were available to work or were in the immediate area. It is
the Carrier's bears the burden to show Claimants were called in accordance with the
Agreement.
We also find without merits Carrier's contention the Agreement was not violated
because the System Gang was assigned to work in a territory where the Gang has the
contractual right to work and thus there was no crossing of seniority lines. As stated
Award 5
above, the work performed by the System Gang was contractually reserved for Claimants.
Under these circumstances, the Agreement was violated even if there was no crossing of
district boundaries.
Accordingly, this Board shall direct Carrier to pay the fifteen and a half hours
(15.5. hours) for the performance of overtime work that should have been assigned to
Claimants. The Board considered the Carrier's assertion the remedy sought is excessive
because it as argued not all members of the System Gang worked fifteen and a half hour
(15.5 hours), but since Carrier did not submit any of the relevant payroll records on
property during the handling of the instant grievance. There is nothing in the record to
disprove the Organization's claim regarding the overtime worked by the System Gang.
Evidence not submitted on the property is not properly before the Board for
consideration. Thus, we are bound to accept the claim made by the Organization as
factually correct.
AWARD
Claim sustained. Carrier is directed to pay Claimants for the overtime work performed by
the System Gang on Sunday, June 15, 2003, that should have been assigned to the
Claimants. We shall retain jurisdiction to resolve disputes over implementation of this
Martin F. S einman, Esq. Chairman
utral Member
Carrier Member Organiza on Member
Dated: November 24, 2008
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