BROTHERHOOD OF MAINTENANCE OF S?AY EMPLOYES
VS.
MISSOURI-KANSAS-TEXAS RAILROAD COMPANY
Roy R. Ray, Referee
1. The Carrier violated the effective Agreement when it called
B&B
Foreman C. C. Smith and Bridge and Building Department Mechanic J. J. Jennings,
Track Foremen N. D. Chancellor and E. B. Foster, Track Laborers D. D. Paul
and J. E. Autrey and failed to call Bridge and Building Lead Mechanic J. H.
Moore, Bridge and Building Mechanics J. D. Hewitt and D. L. beavers to per- - -
form overtime service from 2:00 P.M.,, Sunday, April 4, 1965, at Bridge No. 93.2. -
(System File 400-204/2579)
2. Lead Bridge and Building Mechanic J. H. Moore, Bridge and Building
Mechanics J. D. Hewitt and D. L. beavers be alloyed S hours and 45 minutes pay
at their respective time and one-half rate because of the violation referred
to in Part 1 of this claim.
OPINION OF BOARD: The claim here arose out of replacement of bridge ties damaged -
by the derailment of a freight car, the same situation which was involved in Docket
No. 12. The Organization contends that the work of replacing the ties belonged to
the Fridge and Building Mechanics and should have been assigned to claimants who
were then regular members of.a Bridge and Building gang on Seniority District No. S.
It asserts that by having this work performed by track laborers under the super
vision of a Bridge and Building Foreman Carrier violated the Agreement. It relies
upon Article 3, Rules 1 and 14 (Seniority Rules) as
well
as the Scope Rule (Rule 1)
and Article 11, Section 2 (f).
The Carrier defends the claim on three grounds: (1) The work in question
was emergency work and none of the rules relied upon by the Organization are applicable; (2) The work involved was not the exclusive work of Bridge and Building
employees; thus neither the seniority or other rules require Carrier to assign it
to the Bridge and Building employees; (3) None of the persons on whose behalf the
claim was made were available to perform the work.
About
midnight on
April 3, 1965, an east bound freight train enroute
from Rotan to Bellmead derailed a car near,MP 94. A car was dragged some distance
eastward and over a bridge near MP 93.2 damaging some of the ties on the bridge.
It was retailed and the train proceeded to Bellmead, arriving there about 6:30 A.M.
at which time.the crew reported the derailment. Two Section Foremen were called
and proceeded to the scene of the derailment to make necessary repairs to the track.
When it was learned that some ties on the bridge were damaged and would have to be
replaced and the bridge inspected by a Bridge and Building Foreman to pronounce it
safe for trains, the Division Engineer called Bridge and Building Foreman Smith at
Temple, Texas and told him to
proceed to
the bridge, taking a Bridge and Building
mechanic with him. Smith could not locate such a mechanic in Temple, but on his
way to the
scene he
stopped at Gatesville and picked up Bridge and Building Mechanic
L. L. Jennings. They proceeded to the bridge
where J
ennings and members of the
sections gangs replaced the damaged ties. .
We look first at Carrier's contention that this was emergency work.
Awards of the Third.Division have repeatedly held that where an actual emergency
arises Carrier is not held to the strict provisions of the Agreement but may use
available resources and manpower in order to restore service. The Organization
does not seriously contest this well established principle; but contends that the
damaged bridge did not constitute an emergency. As evidence of the emergency
Carrier points to the fact that a train was called out of Bellmead (Waco) for
5:45 P.M. April 4th due to operate over the bridge involved some two hours later;
that ties on the bridge were damaged and had to be replaced before the train could
proceed; that Carrier called workmen on their rest days and paid them on an .overtime
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basis to get the track repaired in time for the train. The Organization argues
that no emergency existed since the bridge was on a branch rather than the main
line, and traffic was not interrupted or delayed. It says that Carrier did not
consider it an emergency as shown by the fact that although it was aware of the
derailment at 6:30 A.M., it did not call Foreman Smith until 2 P.M. These arguments are not convincing. The main
line-branch line
distinction is not valid. A
train was scheduled and would have been delayed for a substantial period had
Carrier waited until Monday to make the necessary repairs. As to the delay from
6:30 A.M. to 2 P.M. in calling Smith this is explained by the fact that the Chief
Engineer was not aware of the damage on the bridge until the Section Foremen had
arrived on the scene. Under the circumstances existing we are of the opinion
that the derailment and consequent damage to the track on the bridge constituted
an emergency freeing Carrier to use available personnel to perform the repair work
in the shortest possible time.
But even if the existing situation on Sunday, April 4th, could not be
considered an emergency we are of the view that Carrier's assignment of the work
in question did not violate the Scope.or Seniority Rules or any other rules of the
Agreement. All of the work performed at the bridge was on tile ties; none of it was
on the bridge structure itself. To establish any right to the work involved it is
necessary for claimants to prove that the work of replacing ties on a bridge is the
exclusive work of the Bridge and Building Mechanics classification. This they- have
not done and cannot do. Awards of the Third' Division, in disputes from this property, make clear beyond any doubt that work performed
on
'a track on a bridge is not
the exclusive work of the Bridge and Building Mechanics. Award 5870 (pouring a
filler into cracks in ties on a bridge); Award 6151 (pulling spikes and respiking
rails on a bridge); and Award 12098 (installation of an entire bridge deck). Award
5870' clearly distinguishes work in connection with the maintenance and repair of the
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bridge structure itself from work. in connection with the track which the bridge
supports, which is the work involved in the present case.
In view of our conclusion that Claimants have failed to establish any
right to the assignments in question we find it unnecessary to consider the arguments concerning the availability of the Claimants for assignment to the work of
replacing the ties. '
For the reasons expressed we find that Carrier did not violate the
Agreement by the assignment of the work involved.
AWARD
The claim is denied.
Public Lair Board No. 76
Q.~.,
· Roy R. Ray
Neutral Member and Chairman
J
./Nw- /,
~i-nwi 'C. L
A. 3 /Cunningham Fred R. Carroll
Employe Member Carrier Member
Dallas, Texas
December 12, 1968
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