STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: The Carrier has on its property at Blue Island, Illinois, a coal chute which is designated as the "Burr Oak
coal chute. The employes assigned to the work in connection with the Burr Oak coal chute are carried on the payroll of Bridge and Building Gang No. 2, which is under the supervision of Bridge and Building Foreman James Hunter, also stationed at Blue Island, Illinois.
For some time prior to February 25, 1950, the Carrier had assigned section men to assist the coal chute employes on account of cold weather and the quality of the coal being unloaded.
On Saturday morning, February 25, 1950, the section men were required to restrict their services to snow removal and consequently were not available to render any assistance to the coal chute employes.
The Carrier's Division Engineer, Mr. W. E. Simpson, therefore, personally notified Bridge and Building echanics John Atzinger, Dan Marobali and Mike Errico, members of Bridge and Building Gang No. 2, to report to the coal chute to perform the required services. Bridge and Building Foreman James Hunter was not consulted or advised therewith.
Eight hours' service was performed by each of the above mentioned Bridge and Building Mechanics, for which they were compensated at their respective time and one-half rates of pay because of work performed on their regular assigned rest day.
"On the morning of the 25th we called John Atzinger, first-class carpenter, Dan Marobali, second-class carpenter, and Mike Errico, second-class carpenter.
"It is true that Rocco Martino is the oldest first-class carpenter on this gang, but in the past on account of his age, we have not called him for any emergency work. Rocco is a very good man, but he is almost seventy years old and does not desired to be called for emergency work.
"On the night of May 27, 1950, it was necessary to make emergency repairs to the roundhouse door at Blue Island, and in order to confirm the above I had the transportation clerk call Rocco Martino to assist in this work. He stated to the transportation clerk that he did not want to be called for night work. I cannot understand why he should make a claim for punitive overtime on account of not being called when he has never been called in the past. I am asking that the claim by Rocco Martino be withdrawn.
"In the case of Garrett DeYoung, I do not feel that for this labor work it was necessary to call out B&B carpenters in their seniority order. For that reason we called the two oldest secondclass carpenters for this work which is merely labor work assisting the coal chute operator. For the above reason, I am declining claim made by Garrett DeYoung.
It must be remembered that the Division Engineer is a practical railroad man. If the employe seventy years old has long expressed a desire to forego emergency calls at night-was it not logical to assume that the employe would not want to spend his rest day working out in the cold picking frozen coal? This was an emergency-the Division Engineer could not foresee the storm and the resultant need for these men. Under these conditions, is it mandatory that the Division Engineer, who was very busy because of the storm, first call this employe to learn of the employe's desire to work? The carrier firmly believes that the Division Engineer acted as any practical railroad man would under such conditions.
After calling the senior available first-class carpenter, the Division Engineer then called the two senior available second-class carpenters in accordance with seniority provisions.
In consideration of the facts presented, the carrier respectfully petitions the Board to deny this claim.
OPINION OF BOARD: On February 25, 1950, due to a snowstorm requiring their services elsewhere, the section men normally assigned to perform the work in question were not available. Thereupon Carrier elected to call Bridge and Building Carpenter Atzinger (Mechanic First-Class) and Bridge and Building Carpenters Marobali and Errico (Mechanics SecondClass) to perform eight hours, daytime, labor in assisting coal chute employes in the performance of their work. It is conceded that under the existing facts Bridge and Building Mechanics would not otherwise have been entitled to perform such work; that the men called to perform it and the Claimants are all members of Carrier's Bridge and Building Gang, Crew or Group No. 2; and that notwithstanding Claimants are senior to the two employes 5939-11
Carrier made no attempt to call them for service, although they both had telephones, and used the junior employes instead.
The gist of Carrier's overall position is that since the work in question was not work coming within the scope of the Agreement so far as Bridge and Building employes are concerned it could assign such work to any employe in that department it desired, regardless of seniority. On the other hand, the employes contend that having elected to call employes within the group mentioned the Carrier is bound to observe seniority in calling the employes within that group. With respect to the two contentions we have little difficulty in concluding the Organization's position must be upheld. Under a long line of well-reasoned decisions, to which we adhere, we have held, with rules such as are involved in the confronting record, hat when a Carrier elects to call employes from an established seniority group to perform work of another group, there being no employes holding seniority in the other group available, it is required to take notice of the seniority rights of the men in the group called upon to perform the service. See e.g., Awards 2341, 4841, 4947, 5142 and 5604. The reasons responsible for enunciation of the principle therein set forth and herein followed are set forth at length in such awards and will not be repeated. In fact, this case could be decided solely on what was said and held in Award 5604 involving the same parties and somewhat similar facts and circumstances.
There is no merit to a further contention of Carrier to the effect that since these employes were classified as Mechanics First and Second Class it had a right to select employes in either class and then observe seniority principles in those respective classes. The current Agreement, particularly Rule 2 (b) expressly provides that seniority rights of employes in certain groups will be observed and confined to respective group. Other provisions of the same rule clearly indicate that such was the intention of the parties to the Agreement. Moreover, we note that for seniority purposes subdivision (d) of Rule 2 recognizes but one classification for Bridge and Building Mechanics.
Finally, Carrier seeks to avoid application of the rule to Claimant Martino on the ground he was 70 years of age, and had indicated a preference not to be called for work of the kind here involved. We do not believe the facts of record sustain Carrier's claim this employe had indicated unwillingness to perform day work of such character prior to the date in question, and, of course, in and of itself, the fact he was seventy years old did not disqualify him for service. The very most that can be said of the record on this point is that some two months after the events giving rise to the filing of the claim Martino advised the transportation clerk he did not want to be called for night work.
Since, except as above stated, Carrier makes no claim that either of the Claimants were unfit, disqualified, or unavailable to perform the work in question, we think that under the facts and circumstances of record, as well as the awards heretofore cited, the Carrier was required to call Claimants as senior employes before it used the junior employes in question and that the fact it failed to do so resulted in a violation of the Agreement and requires a sustaining award. However, since Claimants performed no work on February 25, 1950, reparation will be limited to the pro rata rate.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and