Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13432
Docket No. 13343
99-2-98-2-29
The Second Division consisted of the regular members and in addition Referee
Robert L. Hicks when award was rendered.
(Brotherhood Railway Carmen, Division of Transportation
( Communications International Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Louisville &
( Nashville Railroad Company)
STATEMENT OF CLAIM:
"Claim of the Committee of the Union that:
1. That the Louisville and Nashville Railroad Company, (now a part of CSX
Transportation and hereinafter referred to as Carrier) violated the
controlling Agreement rights of Louisville, KY, Osborn Shop Carman B.
W. Hadley, (hereinafter referred to as Claimant) specifically, but not
limited to Rule 12 and Appendix "B" when Carrier failed to allow
Claimant his contractual rights to overtime work on a third shift Highrail
Truck Job vacancy which was erroneously filled by an employee called
from the wrong overtime board.
2. Carrier should now be ordered to compensate Claimant for eight (8) hours
pay at time and one half rate account of Claimant erroneously not being
called from the Shop Miscellaneous Overtime Board for work for which he
was available, qualified, and stood first out of September 28, 1996, to
perform."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
Form 1 Award No. 13432
Page 2 Docket No. 13343
99-2-98-2-29
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
There is no dispute in facts between the parties relative to this claim. At
Louisville, Kentucky, two Overtime Boards exist for Carmen - one for the shops and
one for the yards.
A vacancy occurred on the 11:00 PM shift and a Lead Carman (a common
practice as far as this Board is concerned) called the first out Carman off the wrong
Overtime Board. Claimant stood first out for a call on the Board that should have
been called.
Carrier's position is that because the regulation
of
the Overtime Board is the
Carmen's responsibility, and since a Carman historically at this point called another
Carman, the Carrier is not responsible for the error.
The Board does not agree. The Carman who called from the wrong board is a
Lead Carman. He receives differential compensation for his supervisory
responsibilities.
If
the Lead Carman errs in those duties, it is as though the Carrier
erred. The Lead Carman is an extension of management.
Both parties furnished an Award or two in support of their respective
positions. In Second Division Award 12343, involving another Carrier, the claim was
sustained at the pro rata rate. In that dispute, the Board held that if the Lead
Carman was designated by the Carrier to call from the overtime list, then he was
indeed acting as an extension of management.
The Carrier cited Public Law Board No. 4170, Award 14 involving another
Carrier. The facts are not on all fours with the facts in this case. The same holds for
Second Division Award 13303 involving the former Chesapeake and Ohio Railway
Company.
In Second Division Award 13356, also involving the former Chesapeake and
Ohio Railway Company, the merits were sustained, i.e., a Carman was called from
an incorrect Board, but no lost earnings were awarded based solely upon the
Organization's failure to prove a violation of the Shared Overtime Rule.
Form 1 Award No. 13432
Page 3 Docket No. 13343
99-2-98-2-29
In this dispute, involving the Agreement that exists on the former Louisville
and Nashville Railroad, not only is there the standard Shared Overtime Rule, but
there is also an agreed-to method
of
establishing Overtime Boards, including a
remedy clause covering an employee who is not called for overtime he stood for.
Item 18
of
Appendix B reads, in pertinent part:
"18. An employe who through error or oversight is not called for work for
which he stands on the overtime board, when he is available and qualified
for such work, will be paid the amount he would have earned had he been
called and used . . . ."
When there exists a remedy in the Rule, the Board has no authority to levy a
monetary settlement that differs from the parties agreed-to remedy.
AWARD
Claim sustained.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Second Division
Dated at Chicago, Illinois, this 16th day
of
June 1999.