Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27982
THIRD DIVISION Docket No. SG-27472
89-3-86-3-725
The Third Division consisted of the regular members and in
addition Referee Edward L. Suntrup when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim on behalf on the General Committee of the
Brotherhood of Railroad Signalmen on the Consolidated Rail Corporation (Conrail):
On behalf of Signalmen R. Migler, L. Ferrin, J. Stepanian and J.
Tomisek, who are headquartered at Riverbranch, for 2 hours pay each day at
their respective punitive pay rate, beginning 60 days prior to June 10, 1985
and continuing until the headquarters at Riverbranch is repaired, account of
carrier violated the Signalmen's Agreement, particularly, Rule 5-E-2, when it
did not provide water, lockers, heat, chairs, desks and toilets at Riverbranch
headquarters." Carrier SD-2246
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.
A Claim was filed by the organization on grounds that the Carrier was
in violation of Rule 5(E)(2). It was the position of the Claim that the headquarters at Riverbranch
it had been vandalized and broken into in February and March of 1985. According to the Claim the emp
have proper lockers or desk space to store tools, clothes or to do paper work
and had to perform paper work at home after hours. (The Claim also stated
that employees had to carry drinking water from home, and use lavatory facilities off company proper
morning and one (1) hour in the evening on continuing basis. The Claim was
filed for four Signalmen using Riverbranch as headquarters.
t
Form 1 Award No. 27982
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In its denial of the Claim the Carrier argues first of all that the
Claim was in procedural default under Rule 4(K)(1)(e) of the Agreement since
the vandalism occured in February of 1985 and the Claim was not filed until
June 10, 1985 which is "two months beyond the 60-day time limit stipulated" by
this Rule.
The two Rules at bar read as follows, in pertinent part:
"Rule 5(E)(2)
Headquarters shall be provided for all employees and
shall be kept in good and sanitary condition. They shall
be properly heated and lighted and sufficient air space
provided. Drinking water and water suitable for domestic
use shall be furnished. They shall be adequately furnished
with chairs, desks, and lockers and toilets shall be accessible.
Rule 4(K)(1)(e)
A claim may be filed at any time for an alleged continuing violation of any agreement and all ri
Claimant or Claimants involved thereby shall, under this
rule, be fully protected by the filing of one claim based
thereon as long as such alleged violation, if found to be
such, continues. However, no monetary claims shall be
allowed retroactively for more than sixty (60) calendar
days prior to the filing thereof. With respect to claims
involving an employee held out of service in discipline
cases, the original notice of request for reinstatement
with pay for time lost shall be sufficient."
In reviewing the record, the Board must conclude that the members of
the craft had sufficient grounds, after the vandalism of their headquarters,
to believe that Carrier's supervision would either make repairs there and/or
change their headquarters to some other location. Since the Carrier did not
do this in a timely manner (in fact, it did not rectify the situation until
August of that year), the Brotherhood was within its rights, after exercising
reasonable patience, in filing a Claim in June of 1985. The objection raised
by the Carrier is dismissed.
There is sufficient substantial evidence of record to warrant the
conclusion that the Carrier was in violation of Rule 5(E)(2) of the Agreement.
That Rule states, as cited in the foregoing, that headquarters shall be "...
kept in good and sanitary condition." From February of 1985 until August of
1985 the Brotherhood's headquarters at Riverbranch were not kept in good condition: the commode was
chairs could not be used. The company never denies this. Pictures of the
interior of the Riverbranch headquarters presented for the Board's consideration clearly show that t
Form 1 Award No. 27982
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The issue at bar in this case is not whether the Carrier was in violation of Rule 5(E)(2), which
in terms of any type of relief "even if the employees have proven their allegations."
The Board must conclude, in this case, that negligence by Carrier's
management calls for penalty, otherwise Rule 5(E)(2) would be devoid of meaning. That Rule requires
not provide them for some five months. Arbitral support for damages in a case
such as this, which evidence shows to be a Rule violation with impunity, is
supported by Third Division Awards 17973, 20311, 23571 all cited by the Organization in their submis
Third Division Award 22194, and Labor's Dissent; PLB 3529, Award 3 inter alia)
it suffices to cite Third Division Award 20020 which is applicable to this
Claim:
"Contracts are not entered into for the purpose of
practice in semantics. They seek to establish certain rights of the parties. A violation of a contra
to the injured party...
That Award dealt with whether relief should be paid to Claimants who were
working and who had lost no time nor pay because of a Carrier violation of
the Agreement. It, and others such as Third Division Awards 15497, 15888 and
19552, are substantively distinquishable from the instant case. What such
Awards do have in common with this case, however, is that they have all concluded that, upon a findi
of some penalty was appropriate. Given the full record before it the Board
must conclude that such is also reasonable recourse in the instant case.
In its denial of the Claim the Carrier argues that the Claimant presented no receipts of expense
hours. It also argues that there was no authorization to work after hours if
they did so. While such may be true, it is also true that the conditions present at headquarters at
of clothes and tools, accommodations for basis hygenic needs,.and a place to
do bookwork had to be provided by members of the craft, whereas the Agreement
specifically states that such are to be furnished by the Carrier. By providing what the Carrier woul
subsidizing the Carrier. For this they should be recompensed. It is unclear
to the Board how much time and resources of the Claimants this took on a daily
basis. Indisputably it took some of both. The Claimant argue that it took
two (2) hours daily. For some days that may have been true. On others, it
was probably less. Although arbitrary, the Board rules on basis of the record
that the Claimants be compensated one (1) hour per day worked for each day
involved. Payment shall be for sixty (60) days prior to June 10, 1985, which
is the date on which Claim was filed until headquarters conditions were corrected by the Carrier on
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89-3-86-3-725
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 29th day of June 1989.