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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Claimants here are section gang members assigned to the Albert Lea Section. The Organization asserts that interdivisional gangs performed the work of section gangs in violation of Rule 49.
According to the Carrier, the Interdivisional gangs did not perform Claimants' work. Rather, according to the Carrier:
The Organization offers as rebuttal that Claimants routinely perform this work and specifically performed that type of work during 1993. With respect to the alleged emergency, the Organization points out that the former M&StL Yard in Albert Lea was not subject to any flood waters and the work performed by the interdivisional gangs had nothing to do with high water or flood damage. Form 1 Award No. 32415
This dispute is similar to the sustained claim in Third Division Award 32414. We shall also sustain this claim.
Rule 49 is clear stating that "Interdivisional gangs may be established to perform programmed rail and/or tie renewal and ballast work . . . [but] will not be used in lieu of regularly assigned section gangs to perform work customarily performed by said section gangs on their respective section territories." Taking the work as described by the Carrier in this case, as in Award 32414, the work performed by the interdivisional gangs appears to be work of the type performed by section gangs. From this record, the type of work described by the Carrier as "capital project work" of removing switches appears to be section gang work of the type which has been performed by Claimants. But most importantly, in light of the Organization's showing, the Carrier has not shown in rebuttal that the work is "programmed rail and/or tie renewal and ballast work" as required by Rule 49. Rule 49 is further clear that interdivisional gangs "will not be used in lieu of regularly assigned section gangs to perform work customarily performed by said section gangs on their respective section territories." But, from what is before us, that is what happened here.
The Carrier has also not sufficiently established the existence of an emergency. Albert Lea was not subject to flood waters. Further, assuming the ultimate product produced by the dismantled switches was needed elsewhere in the system because of flooding at those locations, the Carrier has not shown that the work was needed on a basis of such immediacy that the type of work involved could not have been performed by section gang personnel at a later time or on an overtime basis.
As a remedy and for reasons stated in Award 32414, Claimants lost work opportunities as a result of the Carrier's violation of the Agreement. Claimants must be trade whole for those losses. Therefore, Claimants shall each be paid a proportionate share of the hours worked by the interdivisional gangs on the dates covered by the claim. Because the claim seeks payment at the straight time rate, that rate shall govern.
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.