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.
On May 18, 2002, the Carrier worked N. Hutchins on her rest day on position TC-44. Hutchins had been the incumbent on position TC-44, but she had been awarded a hold down on position TC-38 from May 17 - 26, 2002. Consequently, on May 18, 2002, for purposes of overtime, Hutchins was not considered the incumbent of position TC-44. The Claimant had greater seniority and should have been called for the TC-44 vacancy. Form I Award No. 38234
During handling on the property, the Carrier never disputed, and at the Division Manager level admitted, that it erred in calling Hutchins for the vacancy. The Carrier denied the claim on the grounds that the claim was defective because it referred to "N. Hutchinson," instead of "N. Hutchins;" it referred to a rate of pay of $151.68, which did not exist; it referred to the vacancy as being on position TC-45, when it was on TC-44; and because another employee had greater seniority than the Claimant and, therefore, greater rights to he called for the vacancy.
The Carrier's objections are groundless. Although the claim initially referred to employee "N. Hutchinson," it subsequently referred to the employee as "N. Hutchins." The Carrier's responses made it clear that the Carrier understood that the employee whose assignment to fill the vacancy that the Organization was contesting was N. Hutchins. The recitation of an incorrect rate of pay was irrelevant. The claim would have been a valid claim even if it did not specify a rate of pay. The reference in the claim to position TC45 was an error, but it is clear that the Carrier understood that the vacancy in dispute was on position TC-44. Finally, numerous Boards have held that the Carrier may not defend against a claim of this type by alleging the existence of employees with greater rights than the Claimant. See, e.g., Third Division Award 2282, as well as Public Law Board No. 2263, Award 39.
As a remedy for violations of this nature, the Board has generally awarded eight hours pay at the straight time rate. Other Boards have varied, some awarding pay at straight time rates and others at overtime rates. In the instant claim, the Carrier admitted that it violated the Agreement when it called Hutchins and admitted that the Claimant had greater seniority and a superior right to be called for the vacancy. Considering all of the unique circumstances in this case, we find that an award of eight hours pay at the overtime rate is appropriate.
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.