JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
E. N. JACOBS, JR., CARRIER MEMBER
D. D. BARTHOLOMAY, ORGANIZATION MEMBER
Public Law Board No. 5651, upon the whole record and all of the evidence, finds and holds that the Employee(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the dispute(s) herein; and, that the parties to the dispute(s) were given due notice of the hearing thereon and did participate therein.
Claimant resides in Carrollton, Missouri. On Friday, February 10, 1995, he was displaced from his backhoe operator position. On Monday, February 13, 1995, he attempted to displace a junior employee working the foreman track inspector position, in North Kansas City, Missouri. Carrollton is approximately 70 highway miles distance from North Kansas City. Claimant was not allowed to displace because Carrier, at the time, had imposed a unilateral requirement
that all occupants of track inspector positions reside within 30 miles of the headquarters of the position. The instant claim was filed challenging Carrier's refusal to allow Claimant's displacement. While this matter was being progressed under the grievance procedures of the Agreement, a different dispute contesting the 30 mile residency requirement was considered by this Board. In Award No 1, dated June 19, 1995, the Board concluded that:
Following the release of Award No. 1, Carrier continued to deny Claimant a displacement onto the track foreman's position at North Kansas City, on the basis that the distance involved would require an emergency response time of one hour and fifteen minutes, which it did not consider to be reasonable under the circumstances. Carrier has not indicted what if considers a reasonable response time to be, nor has offered any evidence on what response times are in place elsewhere. The Organization notes that Claimant was denied the opportunity to displace, therefore he was unable to demonstrate if he could respond to emergency call-out within a reasonable time.
Thus the real issue in this matter is what is a reasonable response time for emergency call-out. In our award No. 1 we concluded- that an employee, that did not live within 30 miles of the headquarters point, could not be denied a track foreman's position, if he were able to respond for emergency call-outs within a reasonable time. That conclusion is reaffirmed here. It is obvious that it would be patently unfair for Carrier to require that an employee live within a few minutes. of the headquarters point of a track foreman's position to be eligible for assignment to that position. On the other hand, Carrier can expect that employees assigned to a track foreman's positions reside within a reasonable distance so as to be able to respond to an emergency call-out without inordinate delay. A fixed mileage requirement between the residence and the headquarters point is inappropriate because vast variations in travel speeds exist, depending upon the area involved. A time factor, though, is not inappropriate, because, regardless of the distance involved, the elapsed time from notification of the emergency to reporting at the site is what is important. The question is, then, what time factor should be used.
In answering this question, the Board looks to practices in the industry. In train service operations it is almost universal that employees are entitled to a minimum 1 hour and 30 minutes notification, when being called for work. (We are aware of several rules that call for a minimum of two hours, but 1 hour and 30 minutes is almost the universal standard.) Therefore, the Board concludes that a 1 hour and 30 minute response time should be the standard applied to this case. This standard should be applied in normal conditions. A good test would be the average commuting times between the employees residence and the headquarters point. If on a daily basis the employee is able to travel to work for his regular scheduled starting time in 1 hour and 30 minutes or less, he should not be denied assignment to a track foreman's position on the basis that he would be unable to timely respond for emergency call-out.
As applied to the instant case, while Claimant lived 70 miles from the headquarters point, it was conceded that his response time would only be i hour and 15 minutes. This is less than the accepted minimum call time in the industry. Carrier in effect was holding Claimant to a shorter response time than it provides thousands of other of its employees that are subject to calling to report for their assignments. As such it was an unreasonable denial of his displacement unto the track foreman's position he sought. His claim is valid. It will be sustained.
Claimant shall now be allowed to displace unto the track foreman's position at North Kansas City, Missouri. He shall be made whole for wage losses sustained between that what he received in other employment and that what he would have received in the track foreman's position he sought to displace onto.
Carrier is directed to comply with this award and make any payments due within thirty days of the date indicated below.
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL MEMBER
E. N. JACOBS, JR., CARRIER MEMBER
D. D. BARTHOLOMAY, ORGANIZATION MEMBER
Date of Hearing - October 17, 1996
Date ofAward April 21, 1997
Accordingly, a correct computation of the remedy would be to determine what the occupants) of the track foreman's position earned, while -working as a track fpreman at North Kansas City, Missouri, during the period of time that Claimant was entitled to work the job, and use this result as the benchmark to determine wages lost. The Award did not contemplate inclusion of earnings accruing to a particular individual that resulted from service other than as the track foreman at North Kansa C