NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-23042
Martin F. Scheinman, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific
( Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to recall
furloughed Laborer R. D. Soper to service on January 26, 1978 (System File
C#29/D-2173).
(2) Because of the aforesaid violation, Laborer R. D. Soper shall
be allowed twenty-four (24) hours of pay at his straight-time rate and eighteen
and one-half (18-1/2) hours of pay at his time and one-half rate for January
26, 27, 29 and 30, 1978."
OPINION OF BOARD:
Claimant, R. D. Soper, established and holds seniority as a
Laborer and at the time of this dispute, Claimant was
furloughed. The Organization contends that Carrier violated Rule 11 of the
Agreement when Carrier failed to recall and assign Claimant for service on
January 26, 27, 29 and 30, 1978. Carrier, instead, assigned and used an employe
with junior seniority.
Rule 11 states:
"When forces are increased, except as provided in Rule
8 c , the senior, available, laid off employes in the re-
spective classifications will be notified and the will return
to service within seven
7
days after being notified at their
last known address, unless prevented from doing so by reason
of sickness or other unavoidable cause. Failure to return to
service in accordance with the provisions of this rule will
cause forfeiture of seniority rights." (Emphasis supplied)
Carrier argues that an attempt was made to contact Claimant on January
26, 1978, but contends that there was no answer.
Since it
could not reach
Claimant on January 26, the junior employe was also used for January 27.
Carrier further argues that blizzard conditions on January 29, constituted an
emergency which required utilizing the nearest available employes to rerail a
snowplow. Carrier admits that no attempt was made to contact Claimant on
January 30.
After a careful review of all the evidence presented, we believe
that an attempt to contact the Claimant on January 26, 1978 was made, but he
was not available and therefore, could not receive the call. However, even
a reasonable attempt on January
26,
would not suffice regarding the work
Award Number 234u2 Page 2
Docket Number W-23042
required on January
27.
Therefore.. we must conclude that the Claimant
was available to work on January
27.
As to January
29,
we are persuaded that an emergency condition existed
due to the derailed snow plow. For this reason, the nearest, available employe
was called and utilized and we believe this was proper.
In regard to January 30, Carrier acknowledges that Claimant should
have been called and under Rule 11, he is entitled to be compensated for this
date.
In all, Claimant should be paid 8 hours straight time and
4
hours overtime for January
27
and
8
hours straight time for January 30,
1978.
Compensation for January 26 and
29, 1978
is denied due to the reasons
cited above.
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.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Executive Secretary
Dated at Chicago, Illinois, this 8th day of December
1981.