Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29041
THIRD DIVISION Docket No. MW-28867
91-1-89-3-266
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Kansas City Southern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned KCS
Seniority District B&B employes instead of L&A Seniority District B&B employes
to perform B&B work on the L&A Seniority District on December 15, 1987 and
January 5, 6, 7, 8, 12, 13, 14 and 15, 1988 (Carrier's Files 013.31-345(5) and
013.31-345(4)). ,
(2) As a consequence of the aforesaid violations, L&A Seniority
District B&B employes H. Hoose, C. Love, G. Adams, Jr., H. Williams, A. Woods,
L. Willis, M. Kelly and J. Goodman shall each be allowed eighty-eight (88)
hours of pay at their respective straight time rates."
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 outset, the Carrier contends that the Claim should be dismissed because of the Organizati
requirements of Rule 14-1, which states in pertinent part as follows:
"(b) If a disallowed claim or grievance is to be
appealed, such appeal must be in writing and must be
taken within 60 days from receipt of notice of disallowance, and the representative of the Carrier
shall be notified in writing within that time of
the rejection of his decision. Failing to comply
with this provision, the matter shall be considered
closed, . . . .
Form 1 Award No. 29041
Page 2 Docket No. NW-28867
91-3-89-3-266
In this instance, the organization received the Division Engineer's
denial letters (to two Claims, combined here) on July 18, 1988. The Organization responded under dat
the appeal on September 16, 1988.
Not counting the first day, July 18 (the accepted procedure),
September 16 would have been the sixtieth day thereafter. In addition, the
Organization convincingly states that the appeal was "taken" on September 14,
proven by the reasonable assumption that delivery by mail was made two days
later. The Carrier's contention is without support.
Involved here is work performed on December 15, 1987, and on various
dates in January 1988, which the Organization claims was within the seniority
district of the Claimants, members of the L&A B&B Gangs. The work was performed by members o
L&A seniority district.
The record demonstrates that the work was performed within the Claimants' seniority district and
Claimants' right to such work is well established by rule.
For its actions, the Carrier presents a series of defenses, none of
which is convincing to the Board. The Carrier argues that the Claimants (with
two exceptions, to be discussed below) were otherwise working at the time and
thus not available. This, however, is an insufficient basis to justify assignment of work to employe
to suffer lose of earnings on the days in question sufficient to defeat a
Claim.
The Carrier also argues that the work was of an "emergency" nature in
response to FRA reports of defects requiring immediate repair. As the Organization points out, howev
basis, with the employees involved doing so within normal hours of work.
The Board, therefore, finds that the Claims have merit, with specific
exceptions. The Carrier stated without contradiction during the claim handling procedure that one of
and another Claimant, on one of the dates, was on vacation. The Carrier also
stated that no work as claimed was performed on two of the dates (January 8
and 12, 1988). In the absence of contradiction to these assertions, the Claim
will be denied as to the two Claimants for the dates indicated as well as for
all Claimants on January 8 and 12.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 29041
Page 3 Docket No. MW-28867
91-3-89-3-266
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
C4~
Nancy J. erEr - Executive Secretary
Dated at Chicago, Illinois. this 22nd day of November 1991.
CARRIER MEMBERS' DISSENT
TO
AWARD 29041, DOCKET MW-28867
(Referee Marx)
In Award 28923, the same neutral ruled that:
"...The Board is not empowered to assess
punitive damages, even in the face of
allegations as to past Carrier practice
...."
Award 28923 was adopted August 29, 1991. Three months
later Award 29041 was adopted, and in the instant Award the
neutral reversed himself, forgetting, ignoring, or overlooking what he had said in Award 28923. Cont
assessment, he sustained the claim on an hour for hour basis,
despite the unrebutted fact that each claimant (with minor
exceptions) was on duty and was paid for services rendered
on each claim date. This clearly is the assessment of
damages.
In Award 28923, even when the Employes established a
pattern of Carrier's continued violation, damages were not
assessed. In this dispute, there exists not one whisper of
Carrier's continued violation: yet, damages were assessed.
The phrase, consistently inconsistent, is most apt.
We do dissent.
R. . Hi cs M. W. Fingerut
C'.
~° ,-~ igz~ -
M. C. Lesnik P. V. Varga
J E. Yost