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 employe 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.
The Organization raised a timely objection to evidence offered by the Carrier de novo in its Submission. None of that evidence will be considered by this Board. The Board's findings are based solely upon the record established on the property.
At the time the instant claim arose, Claimant was a Track Subdepartment employee assigned to Form 1 Award No. 29913
Flomaton, Alabama. On August 17, 1989, Carrier assigned a Welder and a Welder Helper to make field welds at Mile Post K-607.7. The work took approximately three hours, during which time Claimant was employed elsewhere on carrier's property. In the course of their work, the Welders unspiked, moved, and respiked some crossties that were proximate to the welding points. By letter of September 18, 1989, the organization filed a claim alleging that the Welders had performed Track Sub-department work, and requesting Claimant be paid three hours straight time at his regular rate.
At the crux of this case is Appendix No. 34 of the Agreement between the Parties, dated December 6, 1974. Appendix No. 34 reads in pertinent part as follows:
The language of Appendix No. 34 is clear and unambiguous. It is uncontroverted on this record that Carrier failed to assign a Track Repairman to work with the Welder and Welder Helper in question. The Board is not persuaded by Carrier's argument that the Welders performed Track Sub-department work without Carrier's authority, thus absolving Carrier of any culpability in this regard. (See, for example, Second Division Award 6898.) Had Carrier complied with the specific provision of Appendix No. 34, and assigned a Track Repairman to work with the welding gang, there would have been no opportunity for the Welders to "voluntarily" perform Track Sub-department work. Accordingly, the Board finds that Carrier did violate Appendix No. 34 in this instance.
With respect to the Organization's claim for monetary damages, Carrier asserts that such damages are inappropriate where Claimant was fully employed during the incident at issue. However, this Board concurs with Third Divison Award 27614 as follows: