PUBLIC LAW BOARD NO. 5606
PARTIES) BROTHERHOOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION OF THE INT'L BROTHERHOOD OF TEAMSTERS
TO )
DISPUTE ) SPRINGFIELD TERMINAL RAILWAY COMPANY
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated Article 10.4(d) of the Agreement when it
assigned planned rest day overtime machine operator work to
I&R Foreman J. Tracy instead of Equipment Operator Barry B.
Raye on November 17 and 18, 2007.
2. As a consequence of the violation referred to in Part I above,
Equipment Operator Barry B. Raye shall now be allowed $766.98,
which is twenty-four and one-half (24.5) hours' pay at the
equipment operator overtime rate of pay. (Carrier File MW-08-03)
FINDINGS:
The Board, after hearing upon the whole record and all the evidence, finds that the
parties herein are Carrier and Employee within the meaning of the Railway Labor
Act, as amended; this Board has jurisdiction over the dispute involved herein; and,
the parties were given due notice of hearing thereon.
The facts of the dispute are brief and simple. It is the contention of the
Organization that the Carrier violated the terms of Article 10.4(d) of the Rules
Agreement when it failed to call Claimant, an Equipment Operator, for planned
overtime work on Saturday, November 17, 2007, and Sunday, November 18, 2007.
Section 10.4(d) of Article 10, "Overtime," of the current Agreement reads in part
here pertinent:
Planned overtime, rest day, and holiday work which is a continuation
of a work project of a specialized nature, such as tie and surface, rail
laying, construction, clean-up, etc., will be given to the specialized
crew ordinarily doing this type of work during the regular assigned
work week, with the members of the specialized crew being utilized in
the order of their seniority, if available.
Page 1
PLB No. 5606 AWARD NO. 73
CASE NO. 73
The basis for the Carrier denial of the claim in handling on the property is a
contention that its supervisors in the production zone in which Claimant was
working are well aware of the proper call procedure, and that every available
individual was asked and either refused the work or they were unable to be reached.
Thus, the Carrier opines, if Claimant was not asked, then it only stands to reason
that Claimant was unable to be contacted.
The Carrier also argues that it is evident that Claimant did not want to work
overtime since documents as presented in conference on the property show that
Claimant's crew worked overtime the week before and after the dates being
claimed, but Claimant never took any of that overtime.
Lastly, the Carrier says since the Organization has not provided any evidence to
establish that the Claimant was not called, or refute the contention that he was
called, but could not be reached, there exists a dispute of material facts that
precludes the Board from issuing a sustaining award.
The Board fnds the Carrier's position untenable. The record may not be read as
involving a dispute of material facts. The Claimant was entitled to be called for the
overtime work pursuant to Section 10.4(d) of the Agreement. It was incumbent
upon the Carrier to show probative support for its contention that Claimant was
asked or called and refused the overtime work, or, in the alternative, the extent of
effort that was made to contact Claimant in support of argument that he was unable
to be reached for the overtime work.
Numerous times in awards of boards of adjustment it has been held that mere
assertion, self-serving declarations, and general statements are of no real probative
value in the consideration of a dispute. Furthermore, that Claimant may have been
asked or called on other occasions and elected not to work overtime at those times,
may not be viewed as justification for not calling Claimant in this instance, much
less be held to constitute a basis for denial of the claim.
As concerns overtime compensation claimed for the Carrier failure to call Claimant
for the planned overtime work at issue, and Carrier argument that should the claim
be sustained, payment be limited to that of the straight time rate of pay because
Claimant performed no work whatever on the dates of claim. The Board is aware
that there have been awards in which only the straight time rate of pay was held to
be an appropriate measure of damages in concluding that work must actually be
performed for an employee to be entitled to the overtime rate of pay. However, the
Board finds the better-reasoned decisions to have concluded that affected employees
are entitled to be made whole in the amount of compensation they would have
earned absent the contract violation.
Paae 2
PL13 No. 5606 AWARD NO. 73
CASE NO. 73
In this latter regard, the Board would especially here note the following excerpt
from Third Division, NRAB, Award No. 13738, a conclusion that has been
referenced in a number of other awards in holding that the time and one-half rate of
pay is the appropriate measure of compensatory damages so as to put the affected
employee in as good a position as if there had not been an evident breach of
contract:
Had Claimants been called and performed the work involved, as was
their contractual entitlement, they would have been paid, by
operation of the terms of the Agreement, time and one-half for the
hours worked. In like circumstances this Board has awarded
damages at the pro rata rate in some instances, and the overtime rate
in others. The cases in which the pro rata rate was awarded as the
measure of damages, . . . are contra to the great body of Federal
Labor Law and the Law of Damages. The loss suffered by an
employee as a result of a violation of a collective bargaining contract
by an employer, it has been judicially held, is the amount of money
the employee would have earned absent the contract violation. Where
this amount is the overtime rate an arbitrary reduction by this Board
is ultra vires. Therefore, we will sustain the claim for damages as
prayed in paragraph (2) of the Claim.
In the circumstances, the Board finds that Claimant is entitled to the time and onehalf rate of pay as claimed account not being called for the planned overtime work
at issue.
AWARD:
Claim sustained.
Robert E. Peterson
Chair & Neutral Member
Anthony F. Lomanto Stuart A. Hulburt, Jr:°
Carrier Member Organization Member
North Billerica, MA
Dated
'>' n