The Second Division consisted of the regular members and
in addition Referee Don J. Harr when award was rendered.
SYSTEM FEDERATION NO. 16, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. - C. I. O. (Carmen)
EMPLOYES' STATEMENT OF FACTS: The Norfolk and Western Railway Company, hereinafter referred to as the carrier, maintains at Elmore, West Virginia, a point on carrier's line (formerly Virginian) a shop and yard where cars are inspected, serviced and repaired, and in addition a regularly assigned wrecking craw and outtit, of which D. li. Lilly, hereinafter referred to as the claimant, was a regularly assigned member, assigned wrecking crew and outfit on the New River Division, on which Division both Elmore and Wyoming, West Virginia are located, with Wyoming being situated approximately eighteen (18) miles from Elmore, West Virginia.
On the morning of November 20, 1967, there being a loaded Car NKP 61304, with wrung journal, and partially derailed, with one wheel having completely left the tracks and/or right of way, the wreck master anti wrecking crew with the exception of claimant, were taken by track, with jacks, tools and equipment to the scene of derailment at Wyoming, while a self propelled derrick, with accompanying car upon which was loaded a spare track, to replace the derailed and damaged truck under said car at Wyoming, moved out of Elmore Terminal and to scene of derailment at Wyoming, said derrick car being manned and operated by a derrick engineer from the maintenance of way department, while claimant who was the regularly assigned wreck derrick engineer, was available, but not called or allowed to accompany the outfit.
2. Claimants to be paid pro rata and not at time and one-half rate. See Awards Nos. 2700, 2802, 2859, 2956 and 2958, Second Division."
"Before Rule 33 can come into play there must be a call and reporting. It does not govern the rate for work not performed which is the basis of the claim before us. The conditions which make the higher rate applicable have not occurred here, and we adhere to our former awards that the pro rata rate is the proper rate in a sustaining award for work not performed.
On November 18, 1697, Car NKP 61304 was partially derailed due to a wrung journal. This occurred near Wyoming or Mada, West Virginia, approximately eighteen miles from Elmore. This incident occurred between the switches of a siding and the car was left there.
On November 20, 1967, Carmen from Elmore were sent to make temporary repairs to the car. The damaged truck was removed from under the car and replaced with a new one. A Maintenance of Way Burro Crane was used to transport the new truck and lift and remove the damaged truck.
The Employes contend that the Agreement was violated and rely upon Rules 9(d), 30(a), 110, 113 and 114 of the effective Agreement
We find the work in question to be Carmen's work. Under the provisions of Rule 114, Carrier was required to call "the regularly assigned crew" to perform the work.
We find that previous awards of this Board have taken different approaches to damages in claims of this type. We believe the proper relief is the difference between what the Claimant earned on Novmber 20, 1967, and what he would have earned had he been called to accompany the wrecking crew. See Second Division, N.R.A.B. Award 5492.
Item 2 sustained for the difference between what Claimant earned on November 20, 1967, and what he would have earned had he been called to perform the wrecking work.