OPINION OF BOARD: The facts from which this claim arose are undisputed. At 3:50 P. M. on August 9, 1961 a derailment occurred on Carrier's eastbound main line at Durand, Michigan, resulting in extensive damage to the track and signal equipment. The Signal Maintainer in Durand, Mr. H. Mann, was summoned promptly and commenced repairs on the signal system. At 5:45 P. M. he called Mr. A. O. Marken, Assistant Suupervisor of Signals at Flint, Michigan, requesting additional help. Murken proceeded to call two members of the Flint Terminal Signal Gang who departed Flint at 6:15 P. M., arrived at the derailment site at 6:45 P. M., assisted Mann in the repairs to completion, returned to Flint and booked off duty at 11:00 P. M.

The derailment occurred in the territory assigned to the Lansing Terminal Signal Gang by Carrier. This claim is on behalf of two members of the Lansing crew on the basis: of the work protection in their assigned territory afforded them by Article 18 of the Agreement between Carrier and the Signalmen. It is conceded they are entitled to such protection under ordinary circumstances-absent a situation of such emergent character as to excuse violation of the Agreement on the part of Carrier.

Certainly, a derailment signals an emergent condition. The immediate restoration of service is in the interest of Carrier and Brotherhood alike.

Blesesd with the 20-20 hindsight we now have in this case we may safely "second-guess" Carrier's management. Two hours after the derailment one lone signalman plugs away to restore service. At 4:30 P. M. the gang from which emergency help should have been drawn ended its tour of duty. At such time it honored its responsibility under Rule 18; aware of the derailment, its Foremen notified the Lansing Operator of the gang's availability for any emergency required. Here follows a lack of communication since apparently this intelligence was not forwarded to Mr. Murken at Flint, he being the employe responsible for furnishing personnel to do the repair work.

Since the record is bare of details, we can only speculate as to why Murken, charged with such responsibility, was not more fully aware of the situation. Suffice it to say that this Board believes any derailment demands closer attention to~ duty than was displayed here by management personnel.

We state further that most emergencies can be anticipated and that all personnel should be fully acquainted with procedures required by such emer gencies. Certainly, when signal apparatus is knocked out in a derailment the officer responsible for repairs should anticipate the need of extra help and immediately ascertain its availability from the source to which the work belongs by agreement.

We must view the situation not through hindsight but as of the time of the occurrence and through the eyes of the Carrier official having decisionmaking authority-in this case, A. 0. Murken. He learns of the need for additional help at 5:45 P. M.; in the call for help Signal Maintainer Mann emphasizes urgency in order to take advantage of the waning daylight hours. Marken promptly responds by drafting the two men closest at hand and of whose immediate availability he was fully aware. From the record we may conclude approximately 30 minutes of daylight was thus saved. In hindsight that made little difference. But at the time and in light of the information then available to Murken it could have furnished sufficient justification for violating the Agreement.

In the absence of a crossing of craft lines or of evidence clearly reflecting negligence or had faith on the part of the decision-maker we are unwilling to impose sanctions on Carrier for violation of the Agreement. See Awards 3875, 10181. While we deplore and discourage contravention of the rules, we think the over-riding consideration should be one of encouragement of prompt exercise of discretion in order that the emergent condition may be expeditiously ameliorated. We limit our decision to this instance.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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

That the Agreement was violated.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

DISSENT TO AWARD NO. 14649, DOCKET SG-13656

The Majority in Award No. 14649, while correctly finding that the Carrier violated the unambiguous provisions of its Agreement with its employes, errs in not making the claimant employes whole. We believe that history will confirm that, where a wrong is allowed without a remedy, no effective deterrent to further wrongs has been erected.

The Majority contends that the confronting record presents no evidence reflecting negligence or bad faith and states that we are, in the absence thereof, unwilling to impose sanctions for violation of the Agreement. We can not fathom such reasoning, for Agreement rules regulating the calling of Signalmen have been before this Board many times, and the Board has, when claimants were available, consistently upheld the position here taken by Petitioner and awarded pay appropriate to the work lost to the Claimants. When we consider that our previous awards have been made available to this Carrier and properly charge this Carrier with the responsibility for knowing the terms of its own Agreement with its employes, we find no excuse for the violation.

In any event, we can not again so excuse any Carrier for a violation of a similar agreement provision; surely all have now been put on notice and no "absence * * * of evidence clearly reflecting negligence or bad faith" can again be found.

Award No. 14649 is in error; therefore, I dissent.

W. W. Altus