Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31658
Docket No. MW-31076
96-3-93-3-77
The Third Division consisted of the regular members and in addition Referee
Robert Richter when award was rendered.
(Brotherhood of Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned an employe
of
an outside concern (Pacer Trucking Company) to haul signal
equipment [four (4) signal houses] from Houston to Dallas, Texas on
January 14, 1992 (System File MW-92-58/MofW 92-22 SPE).
(2) The Agreement was further violated when the Carrier failed to give
the General Chairman proper advance written notice of its
intention to contract out the work in question in accordance with
Article 36.
(3) As a consequence
of
the violations referred to in either Parts (1)
and/or (2) above, Heavy Duty Truck Driver D.D. Baker shall be
allowed eight (8) hours' pay at his pro rata straight time 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 employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
Form 1 Award No. 31658
Page 2 Docket No. MW-31076
96-3-93-3-77
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute waived right
of
appearance at hearing thereon.
In Third Division Awards 31260 and 31266 involving the same parties in a like
dispute the Board held the Agreement was violated and the claims were sustained.
After a thorough review
of
the record in this case we find no basis to overturn the
above mentioned awards.
In this case the Carrier makes the additional argument that the Claimant was
fully employed, and as such is not entitled to a monetary award. However, we are
persuaded that the circumstances exist which make a damage award appropriate.
Refusing to make a monetary award would, in effect, condone the Carrier's violation.
AWARD
Claim sustained.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 29 day
of
August 1996.