STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railroad Signalmen of America on the Clinchfield Railroad that:
EMPLOYE'S STATEMENT OF FACTS: The claimant, P. E. Booher, Jr., is regularly assigned as SC&E Man in this Carrier's SC&E Gang No. 10, with a seniority date of August 8, 1950, in this Carrier's SC&E Department.
On date of Saturday, February 25, 1956, a derailment occurred on this Carrier's Fremont Section at Caney, Va., which is near Fremont, Va. The regularly assigned SC&E Maintainer assigned to the Fremont Section was registered as off duty on this date. Therefore, since the services were needed of a SC&E Man, the Carrier was obligated under the rules to call a senior available employe of the class to perform the services.
Instead of calling the senior available SC&E Man, the Carrier called Junior SC&E Man J. L. Sifferd to perform the services at the derailment. SC&E Man Sifferd has a seniority date as of November 21, 1950, whereas the claimant has a seniority date as of August 8, 1950. Both the claimant and Sifferd are regularly assigned as SC&E Men in SC&E Gang No. 10, and Saturday, February 25, 1956, was a rest day of their assignment.
The record discloses that Claimant Booher was at his place of residence on February 25, 1956, which was at Kingsport, Tenn., that he was available
The Employes know that the rule was so written and mutually agreed upon to permit exactly what was done in this case.
We, therefore, submit that the agreement was not violated-that this claim is wholly without merit-and we respectfully request this Board to so find.
Carrier has included in this submission all relevant, argumentative facts and evidence with respect to this claim, all of which have heretofore been presented to the Employes.
OPINION OF BOARD: Claimant named herein held a regular assignment on Carrier's SC & E Gang No. 10. Claim is made against Carrier for 15s/z hours compensation at the time and one-half rate for service performed by another employe when Claimant was available for emergency service, but was not called for service by Carrier, as contended by the Organization.
On Saturday, February 25, 1956, a derailment occurred on the Fremont Section at Caney, Virginia. The facts show on the day in question Claimant, who held a seniority date over J. L. Sifferd, were both off duty on account of both employes being on their regular rest day, February 25, 1956. The regular Signal Maintainer, in whose territory the derailment occurred, teas not available for service in the existing emergency having been marked out of town until 9:00 P. M., February 26, 1956.
In view of the existing derailment and the regular assigned Maintainer not being available for emergency service, Carrier, requiring immediate service to be performed at the point of derailment, called its Supervisor, SC & E employe Sifferd and an SC & E Helper to proceed from Erwin, Tennessee, Carrier's headquarters to the point of derailment. Necessary signal repairs were made and the employe J. L. Sifferd performed the service of Maintainer for a period of 15 1/z hours.
It is for the service performed by Sifferd, who held seniority junior to Claimant, that the Organization is processing this claim on the contention that Claimant should have been called by Carrier in preference to Siff erd. The Organization relies on the provision of Rule 16 of the effective Agreement based upon the premise that Carrier did call a part of a group of employes who customarily work together on Gang No. 10, that such employes shall, if having seniority and being available, have a preference for overtime work if they so desire. The record does show that Claimant does have a seniority date senior to Sifferd.
Carrier takes the position that the provisions of Rule 17 of the effective Agreement specifically apply to the facts and circumstances here, and as stated in this rule, the Maintainer on whose territory the work is required will be called first. In the claim before us the regular Maintainer was not available, Carrier called J. L. Sifferd to perform the service required. We find no provision in either of the rules relied on by the parties that Carrier is required to call the senior member of a Signal gang to perform emergency service on a Signal Maintainer's territory, when the regular assigned Signal Maintainer is not available for such emergency service. There was no requirement that Carrier was obligated to call the employe it used, but when it did call an employe, a member of Signal Gang No. 10, it became obligated under the provision of Rule 16 (d) to use the senior available employe of the group of employes who customarily work together. Claimant held seniority 1°669-11 549
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
Award 10009 is erroneous in, among other things, awarding punitive pay for work not performed because-
Part 1 of the foregoing dissent makes sense only when viewed as though Carrier had a right to deprive Claimant of the overtime. That Claimant was wrongfully denied the opportunity to perform the overtime service is not cause for also denying him the benefit of Rule 16. What the dissenters are contending is that Carrier should gain an advantage from its own wrongdoing.
Part 2 is not factually correct. Examination of our awards, and I have examined several thousand in connection with this case, will show that it is not now "almost universal" that the proper rate for work not performed is the pro rata and not the punitive rate. Down through the years, especially since Award 3193, a principle that has stood the test either expressly or in effect is that the proper penalty for work lost because it was given to one not entitled to it is the rate the regular employe would have received 10009-13 551