This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On or about September 23, 1995, a derailment occurred on trackage owned by the Carrier, as well as trackage owned by Weirton Steel Company, while Weirton employees were moving cars onto its property. It is undisputed that repairs were performed by Weirton between September 24 and 29, 1995. These repairs, which included the repair of the Carrier's track and Weirton owned track, were performed, apparently, without the knowledge of the Carrier.
The Organization cites an identical situation involving these parties, resulting in Third Division Award 29509, wherein the Board, sustaining the claim, held:
The Board finds Award 29509 to be applicable to the circumstances herein. Although the Carrier did not have knowledge of the work, nor did it authorize the work, it was certainly the beneficiary of the work. There is no doubt the work performed was necessary, and would have been performed by the Claimants had it not been performed by Weirton's employees. The fact that Weirton might have been financially responsible for the repairs does not change the fact that this work was exclusively that of the Claimants.
The Board does not find, however, that the Claimants are entitled to all of the relief claimed. First, we note that Claimant J. Hamilton was off sick on each of the dates of claim. As he would not have been available to perform the work in question, he is not entitled to any remedy. Second, Claimant C. Miller was on vacation for two of the six dates of claim. Accordingly, he would be entitled only to one-third the remedy granted. The Board does not find it significant, though, that September 24,1995, was a Saturday, and would not have been a work day for the Claimants. What is significant is that six days of work was performed. Finally, we do not agree that the Claimants are entitled to payment at any rate other than straight time, in accordance with numerous decisions of the Board.
We also do not find that all six days were spent in connection with the repairs to the Carrier's track. It is evident the Organization has not distinguished between the time spent repairing the Carrier's trackage and Weirton's trackage. Neither has the Carrier offered any indication as to how much time was spent on the repair of its trackage. In the absence of any evidence to the contrary, the Board will simply assume that the time was divided equally between the two properties. Accordingly, we will award each Claimant 24 hours' pay at the straight time rate, except that Claimant C. Miller shall be awarded eight hours' pay at the straight time rate, and the claim on behalf of Claimant J. Hamilton is denied.
LABOR MEMBER'S CONCURRING AND DISSENTING OPINION
TO
AWARD 35763. DOCKET MW-33802
(Referee Simon)
The Board correctly found that the Agreement was violated when the Carrier failed to call the Claimants to perform the overtime work involved here. This finding was not difficult to make inasmuch as the Carrier freely admitted that no calls were made to the Claimants. Having determined that a violation of the Claimants' seniority rights occurred, the Board should have paid the claim at the overtime rate. The Board's finding that the Claimants were only entitled to receive pay at the straight time rate, instead of at the time and one-half rate, is not only an anomaly that diverges from the overwhelming arbitral precedent established on this issue in general and on this property in particular but was an argument never raised by the Carrier during the handling of this dispute on the property.
The purported reason for the Board's decision to diverge from the well-established precedent to pay overtime claims at the overtime rate was its assertion that "*** Finally, we do not agree that the Claimants are entitled to payment at any rate other than straight time, in accordance with numerous decisions of the Board." The problem with such reasoning is that the record in this instance was unchallenged regarding the Carrier's failure to call the Claimants, in accordance with their seniority, to perform overtime work at the derailment site. As the Boar recognized in its opinion, "*** There is no doubt the work performed was necessary, and would have been performed by the Claimants had it not been performed by Weirton's employees. The fact that Weirton might have been financially responsible for the repairs does not change the fact that this work was exclusively that of the Claimants." Obviously, had the Claimants not enjoyed a contractual right by virtue of their seniority to have been called to perform the overtime work, i.e., in lieu of the Weirton employes, then the claim would have been denied. The very fact that the record contained an uncontested failure by the Carrier to call the Claimants to perform overtime service to which they were entitled by virtue of their seniority mandated a full sustaining award. Either the Claimants were entitled to be called to perform the overtime work and receive the appropriate overtime pay, or they were not. Since their seniority rights were clearly violated, a full sustaining award was mandated.
Inasmuch as the Carrier never raised the issue of whether the remedy should be paid at the straight time rate or the overtime rate during the handling of this dispute on the property, the Board erred by considering this new argument. Therefore, I dissent to that part of the award which sustains the overtime claim only at the straight ti ate.