WPF: eip

cc: J. J. Berta-Your File 50-90

Ben Ochoa

F. R. Valdez

S. Chavearris

R. C. Phillips

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Claim was timely and properly presented and handled by the Employes at all stages of appeal up to and including the Carrier's highest appellate officer.

The Agreement in effect between the two parties to this dispute dated January 1, 1909, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.

CARRIER'S STATEMENT OF FACTS: On February 3, 1970, there was a derailment at Mile Post 359.5 on Carrier's Montrose Branch located on the Utah Division, which blocked this line for a period of four days.

This derailment occurred in the territory assigned to the Montrose section gang. In addition to using this section gang, Carrier also called section gangs from Delta, Paonia, Grand Junction, Cisco and Palisade. All of these sections, with the exception of Palisade, are on the Utah Division. Carrier also used a B&B gang from Utah Division as well as mechanical forces in clearing this derailment.

OPINION OF BOARD: The record shows that on February 3 1970, there was a derailment at Mile Post 359.5 on Carrier's Montrose Branch, located on the Utah Division. In addition to using certain section gangs from the Utah Division, a section gang from: the Colorado Division and a B&B gang were used to augment the se^tion forces of the Utah Division. The claimants were furloughed track employes of the Utah Division.

The Carrier contends that the claim should be dismissed on two grounds, the first being that the submission of the Petitioner was not filed with the Board in accordance with the provisions of Circular No. 1. There is no proper

basis for such contention. The submission of the Petitioner was filed in accordance with the rules of the Division. The Carrier contends secondly that the claim as submitted to the Board is not the same claim as handled on the property. This contention is also without proper support. The claim before the Board is substantially the same as handled on the property. The question throughout was one of track repairs at a derailment. The complaint was that other than track forces of the Utah Division were used in lieu of using furloughed track forces of the Utah Division. The Carrier has not been misled, nor has the claim been enlarged upon. The Carrier's requests that the claim be dismissed are denied.

As to the merits of the dispute, the record shows that the claimants, furloughed track employes of the Utah Division, were called by the Roadmaster and Foreman about 3:00 P. M., February 3, 1970, to report for work on February 4, 1970. Later the same day the Roadmaster instructed that they not be recalled. We agree with the argument in behalf of the Petitioner that under the circumstances the availability of the claimants could not be questioned. The fact that they were called and then later told not to report indicates that those in charge considered that they had an agreement right to return to work. Under the facts as shown in the record they should have been called and used to perform the work in preference to employes who did not hold any seniority rights in the Track Sub-department and to employes who did not hold any seniority on the Utah Division. We will sustain parts (1) and (2) of the claim, but will deny part (3).

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

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