Fox-n 1 NATIONAL Ra I-LROAD ADJUSTMET~T?' BOARD Award No. 737+
SECOND DIVISION Docket No. 7288
2-HS&T-Ew-'77
Tree Second Division consisted of the regular members and in
addition Referee Abraham Weiss when award was rendered.
( System Federation No. 2, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Electrical Workers)
( Houston Belt and Terminal Railway Company
Dis ate:
Claim of Ennloyes:
1. That accordingly the Houston Belt and Terminal RailvMy Company
violated Rules 22 ( a ) and (b ) , 100 and i~ie:roranc?urn Agreement arpe acing
on Page
45
of the September 1, 19+5 controlling a`rreement ~vnhen
they assigned. Signalman J. R. Dean to perrormio.electricians'
work Saturday August
10,
1975, thus, deprivi ng; Electrician uiunn
of his contractual rights to said work at Houston, Texas.
2. That accord~_ngly, Carri er be ordered to compensate Electrician
Nunn two hours and forty r:~inutes (2'
40"
) at the time and one-half
rate for Saturday, :"Iuvast
16
, 1975.
3.
In addv~.t~_on. to the money amounts claimed herein, the Carrier shall
pay cl.=iiman'c an additional az~,ount of'
61,,~
per annum compounded
annually on the anniversary date of the claim.
Findings:
The Second Division of the Adjustment Board, upon the whole record and.
all the evidence, :finds that:
The carrier or carriers and the ern,al.oye or employes involved in this
dispute are respectively carrier and employe within the meaning, of the
Rail-way Labor Act as approved Jane 21,
153+.
This Division of the Adjustment Board has jurisdiction aver the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Tae
Claimant,
.LI.
L. Nunn, is erlpluyad on the first shift as an electrician
at the Carrier's racil:ity at Houston Texas. His assigned wo?^k days are
Monday through Friday; his rest days, Saturday and Sunday.
At about
4:
GO a.m.. Saturday, r~:ug~.z.-^t
16, 1975,
an insulated rack
supporting overhead 3-Phase service wires atop a pole fell -to the ground.
Repairs involving returning ta fallen race and service vriires atop the pole
mere made by a Signal-.an.
instead
of' by el.ectric;.arz, the Carrier maz_nt=nairc
that it made thz_s vTorss assi.~°,r:::ent after having
tried
1;rlSllcCessf`u11y for 2
hours to reach Claimant T:ur_n by
telephone.
Form 1 Award No.
737+
Page 2 Docket No.
7288
2-IL&3cT-EW-'
77
The record indicates that:
1. Claimant Nunn submitted an affidavit that he was at home and
available for call on the Saturday in question and did not
receive a call from the Carrier. (Employees' Exhibit I)
2. The Day Foreman on duty at the time the rack fell did not notify
the Electrical Supervisor of the event until after 7:00 a.m. It
was the Electrical Supervisor who allegedly tried fox
2
hours to
contact the claimant, to no avail. (Carrier Exhibit B)
3.
The Signalman who did the repair work arrived on the job between
10:15 and 10:
i+5
a.:n. (Employees' Exhibit I, p.
3)
4.
Other electricians were on duty at the time, although the Carrier
maintains -that they were rot qualified, by license, to do the
work required (Carrier's
Submission,
p. 3 );
that the Carrier in
the past ha,:~ been unable to Let them to climb poles, etc., nor
had they ever done live electrical :vork. (Carrier's Rebuttal)
Claimant Nunn lives about
35
miles from Houston. Contacting him, would.
have required a toll charge ( long distance) call. Carrier's Exhibit G
asserts that contacting the claimant "necessitates a lore distance sa11".
However, the record i_xda_ca.tes that the Carrier did not negate the claimant's
affidavit ti-,at he
.,7-as
at home on the day but that he did not receive a
telephone call.
This Board has often ruled that when a party to a dispute asserts an
affirmative defense, as the Carrier here does that it tried, without success,
to reach the
claimant
for
2
hours, some probative evidence i:nzst be submitted.
The record discloses that duriixg the handling on the property no proof was
ever submitted to
substantiate
the Carrier's contention that claimant was
called. The claimant, under the agreement, should. have been called to
perform the repair ,-Tork in accordance with 'pule 100 (Classification of Work -
Electrical Workers). The Carrier must sustain the burden of Proving that
it called the claimant. This tae Carrier failed to do.
Therefore, the claim of the Petitioner must be upheld.
The Petitioner also requests interest on the money amounts claimed.
There is no provision in the agreeuent to support a clam: for interest.
This Board has consistently denied claims fox intorost ir:xere there is no
rule providing for such payment. (Third Division Awards iios.
6962, 13+78,
15709, 18+33;
Fourth
Diviaion .;ward No.
2368;
First Division Awards Nos.
13 098, 13 099;
Second Division rewards Nos.
2675, 5+67, 657, 7030)
Foam 1 Avrard No.
737+
Page
3
Docket No.
7288
2-hB&T-Ew-'
77
A W A R D
Parts 1 and
2
of claim sustained; part
3
of claim denied.
NATIONAL RAILROAD ADJ-UST1,-,,=;T BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
:osr raaxie Drasch strative Assistant
Dated at Chicago, Illinois, this 14th day of October,
1977.