NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20477
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employees
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company (former W&LE)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) Beginning on December 15, 1971 the Carrier violated and continues to violate the agreement w
vacancy of one second-class carpenter on B&B Gang No. 3 at Brewster, Ohio
(System File MW-BRS-72-2).
(2) Second-class Carpenter Bruce E. Gainey now be made whole
for 142.4 miles per day at the rate of two minutes per mile for each day
he is required to commute to Norwalk, Ohio from Massillon, Ohio.
(3) Claimant Gainey be reimbursed for mileage at the rate of 9
cents per mile for 142.4 miles per day until claim is disposed of or claimant is permitted to exerci
the agreement.
OPINION OF BOARD: Claimant worked on B&B Gang No. 3 prior to a military
leave of absence. Upon completion of that leave, there
was no vacancy in Gang No. 3 and he was reemployed on Gang No. 2. As a re-_
sult, he drove approximately 142 miles per day (round trip).
In September, 1971, a "second class carpenter" on Gang No. 3 was
reassigned. In early October, 1971, a bulletin was issued advertising such
a position on Gang No. 3, however, that bid was cancelled due to certain
force reductions. On December 15, 1971, all B&B forces were recalled, but
Gang No. 3 still did not have a full complement of second class carpenters.
Claimant relies upon Rule 40(m) as follows:
"A gang in the Bridge and Building Department shall
consist of one foreman, one leading mechanic, two first
class carpenters, three second class carpenters and a
suitable number of helpers."
Rule 40(m) is singularly clear, and is mandatory. A thorough
review of the handling of the matter on the property leads us to the conclusion that Carrier concede
Award :lumber 20366 Page 2
Docker .cumber MW-20477
While there was some speculation as to whether or not a specific
vacancy had been filled, and some reference o past practice, we feel that
the record, as developed on the property, de onstrates that a required
(second class carpenter) position was not advertised for bid, and the Agreement was violated.
Claimant seeks damages concerning the necessity to travel 142
miles per day during the period that Carrier violated Rule 40(m). Agreement violations should have a
to impose any specific penalty. (See Second Division Award 4487 (Seidenberg). However, we are unable
Award 19899 we considered, at length, a number of aspects of the issue of
damages. But, in that case we noted that the Board should not entertain
speculative claims. We feel that the claim here is speculative.
C1.: mant indicates, in his Submission to this Board, that his job
on Gang No. 2 was "temporary." The record fails to substantiate that assertion. Thus, Claimant chose
question.
While we find a violation of Rule 40(m), we are not able to find
that Claimant established a clear entitlement to damages. We do not, in
any manner, diminish our findings in Award 19899, but merely find that the _.
damage claim is too speculative to suggest a sustaining of that portion of
the claim.
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 Number 20366 Page 3
Docket Number MW-20477
A W A R D
Claim (1) is sustained.
Claim (2) is denied.
Claim (3) is denied.
NATIONAL RAILROAD ADJUSTMENT BOAR
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 23rd day of August 1974.
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