"Claim an behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Union Pacific Railroad:
Claim an behalf of R. L. Cauley, for two hours at his overtime rate of pay, account Carrier violated the current Signalmen's Agreement, particularly Rules 16, when it failed to call the Claimant for overtime work at MP 9.6 to MP 10.9 on the Glidden Subdivision, on October 13, 2008, and instead utilized a junior employee causing the Claimant a last work opportunity. Carrier's File No. 1513682. General Chairman's File No. 5-16-984. BRS File Case No. 14378-UP."
Form 1 Award No. 41613The Claimant was assigned and worked an October 13, 2008. On that same date after the Claimant went off duty, overtime was assigned to Herron from 3:00 1'.M. until 5:00 P.M. to deal with a gate arm being knocked off of a signal. The Claimant was senior to Herron and did not perform the overtime work. The Organization maintains that this violated the Claimant's seniority rights and Rule 16 of the Agreement. Rule 16A states, in pertinent part:
The Organization maintains that the Claimant was available under the Rule, supra, and not called for the overtime in question. As the senior available employee, he is entitled to the remedy requested.
The Carrier argues that the Rule is inapplicable because there was no trouble call on the claim date. Additionally, the Claimant was offered the overtime and refused it. As the Rule indicates, the "regular assignee will be called . . ." and thereafter inasmuch as the work to be performed was an "emergency" that required immediate action, once the regular assignee is called, the Carrier may contact any available employee (Third Division Awards 38094, 37218 and 37100). Nothing in the Rule obligates the Carrier to call employees in seniority order thereafter. In this instance, the Carrier utilized an available junior employee to work the emergency situation.
A careful review of the Agreement Rule and facts at bar reveals no Agreement violation. Early in the on-property correspondence the Carrier stated that the
Form 1
PageClaimant was offered overtime. "Manager Mehta stated the Claimants as well as all the Signal Maintainers are instructed to contact the MSM or the Signal Maintenance Foreman (SMF) if they were available for overtime service." The Carrier stated that the Claimant "did not elect to perform any overtime service on October 13, 2008." While the Organization disputes its receipt of an attachment from the Carrier, the Board notes that the attachment is in the record and that the Carrier correspondence states, "See attached statement of Manager Mehta." Further, even without the attachment, there is substantial evidence that the Claimant was offered the overtime. Additionally, although the Organization submitted a signed document from the Claimant and others alleging that overtime had been handled differently, there was no denial in this retard from the Claimant or the Organization that the Claimant was offered the overtime in question. The Board also notes no denial from the Claimant or Organization to the Carrier's allegation:
Agreement. Nor do they prove a failure to apply Note 2. There is no proof that the Carrier failed to call the regularly assigned Signal Maintainer of the territory. There is no proof that the Claimant was denied his rights under the Agreement to the work performed. Although the Organization maintains that this was not an "emergency," the evidence of record supports the Carrier's position. The Organization's argument that for almost a decade, seniority was used in the assignment of work and the Claimant was the senior employee available and desiring the work was not proven. At no time did the Claimant submit a statement that either he was not offered, or that he wanted to work the overtime on the date in question. Accordingly, the claim must be denied.
Form l Award No. 41613
41614
The Claimant ryas pulled out of service relative to an EOOC charge on September 2, 200$. Subsequent to an Investigation on September 16, 2110$, the Claimant was notified that the charges against him had not been sustained. Once the charges were dropped, the Carrier notified the Claimant that the charges would be expunged from his personal record and that he would be paid for all time lost as per Rule 6$(e) which states:
The Carrier expunged all record of the incident and paid the Claimant backpay for all time lost.
The Organization argues that during the time that the Claimant ryas withheld from service, "his gang worked lots of overtime" due to Hurricane Ike, which hit Southern Texas. The Carrier did not fully compensate the Claimant when he was out of service; it only paid the Claimant the straight time wages that he lost; he was not paid for the $5 hours of overtime that he would have worked had he not been withheld from service. The Organization supports its claim by noting that the Carrier does not refute the fact that the Claimant had always accepted overtime on the gang over the several months that he worked. The Claimant submitted a statement asserting that, "Each time I was offered overtime work, I worked it. I would have worked this overtime if I had not been held out of service by the Carrier." The Organization argues that this is a settled issue, because the Carrier knows when the gang worked overtime and could properly compensate the Claimant. Furthermore, Third Division Award 309$7 put it best when it stated:
The Carrier contends that it fulfilled its responsibility to the Agreement when it properly compensated the Claimant at the straight time rate of pay. It argues that there is no support for the request for overtime based on speculation. The Carrier
Forte 1 Award No. 41614argues that the Organization failed to support its argument that the Claimant lost work, in that he did not work. The Carrier contends that Awards have long held that the proper rate of compensation for making a Claimant whole is to pay straight time and not overtime in addition to actual lost wages (Public Law Board No. 5531, Award 2; Public Law Board No. 2439, Award 17; Second Division Awards 11003, 10926 and 923'7; Public Law Board No. 3199, Award 29j.
The Board is aware that the Organization argues that its request for overtime is not speculative, but actual as in Third Division Award 309$7. The Board does not agree. Third Division Award 309$7 is not on point. It is neither on this property, nor speculative. In that Award, the Claimant should have been called to work five hours of overtime, bat although entitled to the overtime, the Carrier violated his rights, assigned an improper employee and then paid straight time arguing that the Claimant never performed the service. There is no speculation in Third Division Award 309$7. It is an overtime call. Therein the claimant actually lost overtime pay that he was entitled to receive.
This case does not directly involve overtime. The evidence in this record does not prove either that the Claimant would have been called for overtime, or that he would have performed the work. Nor does it show how the hours were claimed. The Organization presented the fact that "his gang worked lots of overtime" due to the hurricane when the Claimant was withheld from service, but what the Claimant would actually have performed is unknown, speculative, and has had a long list of Awards supporting the language of the Agreement to mean only the pay loss of his usual assignment (Public Law Board No. 3994, Award 6; Public Law Board No. 5531, Award 2; Public Law Board No. 3199, Award 29; Public Law Board No. 441$, Award 26). The Organization has not cited a list of Awards that support its position. As stated by Public Law Board No. 2439, Award 17 interpreting the issue, "Principally because of the speculative nature of requests such as this, it has long been the practice of Boards as well as Divisions of the National Railroad Adjustment Board to consider a proper payment for time not performed as pro rata rather than penalty pay."
Accordingly, the Board will not delve into the realm of equity, but rather will follow the language of the Agreement. Nothing in that language explicitly states that the Claimant is to receive assumed or potentially lost overtime, a calculation averaged or speculated as lost overtime. While the Claimant actually may have and theoretically did lose overtime, the Rule is payment for his normal service assignment. Therefore, the claim must be denied. Form I Award No. 4161 4
