PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
AWARD NO. 56
Case No. 56
Referee Fred Blackwell
Carrier Member: J. H. Burton Labor Member: S. V. Powers
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier called and assigned Junior Foreman P.
Girard instead of Mr. H. Shick to perform overtime service at Mile Post 66 in Alliance,
Ohio on May 30, 1987 (System Docket CR-3400).
(2) As a consequence of the aforesaid violation, Mr. H. Shick shall be allowed sixteen (16)
hours of pay at the foreman's time and one-half overtime rate.
FINDINGS:
Upon the whole record and all the evidence, and after hearing on September 6, 1990,
in the Carrier's Office, Philadelphia, Pennsylvania, the Board finds that the parties herein are
Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this
Board is duly constituted by agreement and has jurisdiction of the parties and of the subject
matter.
DECISION:
Claim Denied.
FRED BLACKWELL
ATTORNEY AT LAW
P 0, BOX 6095
1
WEST COLUMBIA,
S,C.29171
(8031791.8086
SBA No. 1016 / Award No. 56 - Case No. 56
OPINION
This case arises from a claim filed in behalf of Claimant H. D. Shick on June 30,
1987, alleging that on May 30, 1987, the Carrier called Junior Foreman P. Girard to
perform work that the Claimant should have been called to perform, thereby improperly
by-passing the Claimant for overtime work under Rule 17 of the Conrail-BMWE
Agreement.
On the date of the overtime by-pass, Claimant Shick was assigned to the
position of Foreman of an I&C Gang at Meadville, Pennsylvania, with a tour of duty 7 A.M.
- 3:30 P.M. There is no question that Foreman Shick is senior to Foreman Girard.
The requested remedy is that the Carrier pay Claimant Shick compensation
equivalent to the sixteen (16) hours of overtime worked by Foreman Girard on May 30,
1987.
The Carrier says that the claim lacks merit, because there was an emergency
due to a derailment of a westbound train between Alliance and Hudson, Ohio, and
because the junior Employee, Foreman Girard, lived four (4) miles from the derailment
site, whereas Claimant Shick lived one hundred (100) miles from the site.
Rule 17 reads as follows:
"RULE 77 - PREFERENCE FOR OVERTIME WORK
Employees will, if qualified and available, be given preference for overtime
work, including calls, on work ordinarily and customarily performed by them
during the course of their work week or day in the order of their seniority."
FRED BLACKWELL * * ,t * * * * * x
ATTORNEY AT LAW
P.O. BOX 6095
WESTCOLUMBIA
S.C.29171
16031791-6066
SBA No. 1016 / Award No. 56 - Case No. 56
The record discloses that on May 30, 1987, a 17-car westbound train derailed
between Alliance and Hudson, Ohio, resulting in the blockage of both main tracks for a
period of twelve (12) hours. The track on which the derailment occurred was blocked for
a period of forty (40) hours.
At approximately 7 P.M. on May 30, 1987, the Carrier called several Employees
to work at the derailment site, including Foreman P. Girard, who was the Foreman of a
Surfacing Gang working in the Alliance, Ohio area, with a tour of duty of 7 A.M. - 3:30
P.M. Foreman Girard performed sixteen (16) hours of overtime work at the derailment
site.
In assessing these circumstances, and the whole record, including the
submissions presented by the parties in support of their positions in the case, the Board
finds that emergency conditions existed at the derailment site on May 30, 1987, and that
Foreman Girard's travel distance from residence to the derailment site was significantly
less than that of Claimant Shick, four (4) miles and one hundred (100) miles, respectively.
The Board further finds that
NRAB authorities have long treated emergency conditions as
an exception to provisions, such as Rule 17 of the Conrail-BMWE Agreement, that require
preference in the assignment of overtime work.
In these circumstances, the Carrier had a reasonable basis for calling a Foreman
junior to Claimant Shick and hence, the Carrier's action in calling Foreman Girard instead
of Claimant Shick cannot be said to have violated Rule 17 of the confronting agreement.
FRED BLACKWELL
In view of the foregoing, and based on the record as a whole, the Board
ATTORNEY AT LAW
P,0. BOX 6095
WESTCOLUMBIA.
S.C.29171
(8031791-6066
SBA No. 1016 / Award No. 56 - Case No. 56
concludes that the claim lacks merit and that a denial award is in order.
AWARD:
The record as a whole does not establish the validity of the claim and
accordingly, the claim is hereby denied.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
Fred Blackwell, Neutral Member
S. V. Powers, Labor Member . H. ur on, Carrier Member
Executed on , 1993
Conrail\ 1016\56-56.106
FRED BLACKWELL
ATTORNEY AT LAW
P 0. BOX 6095
WEST COMM.
S.C.29171
(6031791-6066