Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27335
THIRD DIVISION Docket No. MW-26621
88-3-85-3-371
The Third Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned a junior
employe to perform overtime service on February 23, 1984, instead of calling
and using Mr. C. Neff, Jr., who was senior, available and willing to perform
that service (System Docket CR-868).
(2) Claimant C. Neff, Jr. shall be allowed seven (7) hours of pay at
his time and one-half rate."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
At the time this dispute arose, Claimant was employed by Carrier as a
Class 3 Operator. On February 23, 1984, Carrier called in a junior employee
to work on a derailment from 12:30 a.m. to 7:30 a.m.
As a result, the organization filed this claim. Carrier timely rejected it. Thereafter, the claim wa
property. It is now before this Board for adjudication.
The Organization contends that Claimant was ready, willing and able
to perform the disputed work. In support of this contention, it alleges that
Claimant's supervisor was given Claimant's home telephone number. Thus, the
Organization submits, Carrier had but only to dial a number to apprise
Claimant of the available overtime. Therefore, the Organization asks that the
claim be sustained and that Claimant be paid seven hours at the overtime rate.
Carrier disputes Claimant's contention that it was in possession of
Claimant's home telephone number on the day in question. It insists that a
Form 1 Award No. 27335
Page 2 Docket No. MW-26621
88-3-85-3-371
check of its records found no such listing. In fact, Carrier notes, twelve
days after the incident, Claimant provided all his foremen with his unlisted
home telephone number. Thus, Carrier asserts, Claimant's later actions reveal
his failure to give his supervisor the unlisted number prior to February 23,
1984.
Finally, Carrier contends that payment at the punitive rate is not
appropriate where the time has not been worked. Accordingly, and for these
reasons, Carrier maintains that the claim must fail.
A review of the record evidence convinces this Board that the claim
must be sustained. The record reveals that while Carrier's "snow book" may
not have recorded his number, the person responsible for the calling did have
it. In November 1984, Claimant's Supervisor telephoned his home on an unrelated matter. The call was
sufficiently apprise Carrier of his home telephone number even if he gave more
formal notification after the incident. Under these circumstances, Carrier
clearly did not comply with Rule 17 when it called in a junior employee to
perform the overtime.
Furthermore, we are convinced, Claimant is entitled to pay at the
and one-half rate. This is the rate he would have gotten, had he been timely
called. As such, he must be made whole for Carrier's violation of the
Agreement. Accordingly, and for the foregoing reasons, the claim must be sustained.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: i
Nancy J.
/0W
- Executive Secretary
Dated at Chicago, Illinois, this 30th day of August 1988.