Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32445
Docket No. MW-31360
98-3-93-3-380
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:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned Track
Supervisor W. J. Klien to perform trackman's work (spiking,
pulling spikes, installing joint bars, etc.) at the derailment site in the
vicinity
of
Mile Post 174.5
of
the Buffalo Line, Hyner, Pennsylvania
on March 7, 8 and 9, 1992 (System Docket MW-2511).
(2) The Agreement was violated when the Carrier assigned Track
Supervisor R. Groves to perform trackman's work (spiking, pulling
spikes, installing joint bars, etc.) at the derailment site in the
vicinity
of
Mile Post 174.5
of
the Buffalo Line, Hyner, Pennsylvania
on March 7, 8 and 9, 1992 (System Docket MW-2507).
(3) The Agreement was violated when the Carrier assigned Track
Supervisor Wilson to perform trackman's work (spiking, pulling
spikes, installing joint bars, etc.) at the derailment site in the
vicinity
of
Mile Post 174.5
of
the Buffalo Line, Hyner, Pennsylvania
on March 8 and 9, 1992 (System Docket MW-2518).
(4) As a consequence
of
the violation referred to in Part (1) above, Mr.
G. Urish shall be allowed twenty-seven (27) hours' pay at the
appropriate rate and he shall receive credit for benefit and vacation
purposes.
Form 1 Award No. 32445
Page 2 Docket No. MW-31360
98-3-93-3-380
(5) As a consequence of the violation referred to in Part (2) above, Mr.
W. H. Hirsch shall be allowed twenty-seven (27) hours' pay at the
appropriate rate and he shall receive credit for benefit and vacation
purposes.
(6) As a consequence of the violation referred to in Part (3) above, Mr.
R. A. Hillard shall be allowed eighteen (18) hours' pay at the
appropriate rate and he shall receive credit for benefit and vacation
purposes."
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
As Third Party in Interest, the United Railway Supervisors Association was
advised of the pendency of this dispute and chose to file a Submission with the Board.
At a derailment occurring on March 8-9, 1992, the Organization contends that
three Supervisors, not covered by the Maintenance of Way Agreement, undertook work
regularly assigned to Trackmen. The Carrier disputes the extent and nature of such
work performed by the Supervisors.
The claim is on behalf of three Trackmen, whom the Organization contends
should have been called to perform this work. In its Submission, the Carrier states that
the Claimants were in furlough status and thus not available for such emergency duty.
The Organization contends that this argument was not raised on the property and, as
a result, may not be considered by the Board. However, the Vice Chairman, in his claim
Form 1 Award No. 32445
Page 3 Docket No. MW-31360
98-3-93-3-380
handling appeal, stated in reference to one of the Claimants he "was on furlough status."
The Board reasonably assumes that the other two Claimants were in similar status, as
argued by the Carrier.
As stated in Public Law Board No. 3477, Award 6:
".. . [Tjhere
can be an employee who is furloughed or on leave
of
absence
and, therefore, is not subject to call. It is the Board's view that such an
employee is not available under the terms
of
Rule 5. The Board believes
that subject to call must be interpreted to mean that an employee must be
active with the Company."
Since the Claimants were not "available", other aspects
of
the claim do not
require further examination.
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 21st day
of
January 1998.