NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(supplemental)
CHICAGO, ROCK ISLAND AND PACIFIC
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: The Claimants have established and hold seniority as Bridge and Building Mechanics and were regularly employed on a Bridge and Building Gang on the Des Moines Division under the supervision of Bridge and Building Foreman Glen Johnson.
They were regularly assigned to a 40-hour week, consisting of five days, eight hours each, Monday through Friday, with Saturdays and Sundays as designated rest days.
On Saturday, December 14, 1957, a derailment occurred on Bridge No. 4353 on the Des Moines Division. At 8:00 A. M. on Sunday, December 15, 1957, the Carrier called and used a number of Bridge and Building employes to repair the damage to Bridge No. 4353 occasioned by the aforementioned derailment. These employes worked from 8:00 A. M. to 5:00 P. M. and were paid for services rendered at their respective time and one-half rates.
The claimants, who were senior to the Bridge and Building Mechanics used, were not called or notified to perform overtime services at 8:00 A. M. on the rest day in question, although at that time they were equally available and willing to perform the work as were the junior employes who were used.
We contend also, that as Claimant Riley was not available when Carrier endeavored to contact him to accompany Claimants Crawford and Fisher, that there can be no merit to his claim.
It is our position that this was an emergency requiring immediate action and on basis of the facts there could be no violation of the Agreement on the part of the Carrier. In any event, the Case is closed under the provisions of Article V (b) of the August 21, 1954 Agreement.
In conclusion, and without prejudice to our above position, we submit that as the claimants performed no work 8:30 A. M. to 2:30 P. M., they are not entitled to penalty pay, even if claim had merit, which we deny, as your Board has ruled many, many times that penalty, if any, for work not performed is different from that actually performed.
For the above reasons, we respectfully request your Honorable Board to deny the claim of the employes.
It is hereby affirmed that all of the foregoing is, in substance, known to the Organization's representatives and by this reference is made a part hereof.
OPINION OF BOARD: Exhibits A and B attached to Employes' rebuttal submission are letters dated prior to the ex parts submissions. Their late offering was untimely and in violation of that part of Circular No. 1 of this Board which requires the petitioner to set forth in the original submission:
The content and distribution of District Chairman Craw's letter of March 31, 1958, complies substantially with the notice requirement of Article V, 1(b) of the applicable August 21, 1954 National Agreement. Carrier's plea to the jurisdiction is without merit. Award 8564, where no notice was given is distinguished.
Carrier's asserted defense to the claim is justification based on an emergency. Such emergency as may have existed in this particular instance, so far as is shown by the record, did not necessitate or justify Carrier's failure to recognize the Claimants' seniority rights.
The claim as filed covers the period from 8:00 A. M. to 5:00 P. M. on Sunday, December 15, 1957; the facts support the claim only for the period from 8:30 A. M. to 2:30 P. M. on that day. The proper rates of compensation 11878-9 247
are Claimants' respective time and one-half rates. Rule 25; Award 11333 (Coburn).
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
CARRIER MEMBERS' DISSENT TO AWARD 11878
DOCKET MW-11460
The award is correct insofar as it excludes letters attached to the rebuttal submission and allowed claim for period 8:30 A. M. to 2:30 P. M. instead of 8:00 A. M. to 5 P. M.
The existence of an emergency was undisputed; therefore, the sustaining of this claim is contrary to the vast weight of authority that carrier may, under emergency conditions, use such employes as good judgment dictates. Award 11241 (Moore).
The organization attempted to support its position with a citation of Awards 2341, 4200, 4393, 4531, 6831, 2716, 2717, 2994, 5939, 105, 6627, 6306, none of which were in point for the simple reason none dealt with an emergency nor did carrier rely on emergency conditions as a defense. Award 4531 supports carrier's position rather than the organization as reflected by this statement found in the opinion:
The allowance of time and one-half rate instead of straight time for work not performed is likewise contrary to the overwhelming weight of authority on this and other Divisions of this Board. For example, see Award 4244 (Carter): 11878-10 o,4g