SPECIAL BOARD OF ADJUSTMENT N0. 117


ORDER OF RAILROAD TELEGRAPHERS

and

MISSOURI PACIFIC RAILROAD C014PMTY


Claim for E. W. Ginn and IS. M. Forrest for four hours each at time and onehalf for September 24, 1956, when Carrier assigned S. W. Clark to perform service "GM" office, St. Louis, while he was on leave of absence.

 OPINION OF BOARD: The confronting claim is brought in behalf of two named claimants
 seeking reparations for four hours each at the punitive rate
 account of being denied the right to perform certain overtime work which it is
 alleged was improperly performed by an employe who was on an authorized leave of
 absence and, as such, was not subject to call nor permitted to perform the overtime
 work in question.

 Position -=;"10, whose occupant was temporarily absent account illness, was being filled by extra employe Warren who, on the date in question, did not report. The respondent called employe Clark, who was on an authorized leave of absence for educational purposes, at 8:00 p.m. on this date to perform certain telegraphic work. The said employe Clark performed eight hours of service. It is the performance of this work. by employe Clark which forms the basis of this claim.

 The respondent took the position that while admittedly it could not work an employe on an authorized leave of absence, their use of employe Clark arose under special and peculiar circumstances and was permissible under a letter over the signature of an Organization representative, such communication reading as follows:

    "With reference to your letter of August 27th addressed to Mr. S. W. Clark in connection with protecting extra work in GM office while on leave of absence attending school under Public Law 550.


    "Mr. Clark called on me and we discussed this situation, and I advised him that I would investigate further what might be done. This investigation develops that there would be objection by employees in that office to any employe who had been granted such a leave protecting the rest day relief work and any other kind of extra work except in emergencies.


    "With this in mind I would have no objection to your using Mr. Clark for extra work in GM office in an emergency when no other employe was available."


The respondent took the further position that even though a technical violation might be present, in the absence of a showing of bad faith there was no justification for the granting of the reparations sought.

 The Board is of the opinion that there was no emergency conditions existing at the time in question. The work was performed outside the hours of the position which would have ordinarily performed same. That the performance of this work was required is evidenced by the fact that employe Clark was called in to perform same. We cannot construe the above quoted communication as granting to any employe
                                              Award No. 86

                                              Docket No. 86


holding the status of employe Clark the right to perform extra or any other type of work in cases where other employes are available. It is unquestioned that either or both of the said claimants were available. The fact that such work would have had to be paid for at the punitive rate does not, in and of itself, constitute an emergency as such.

 While this claim is meritorious, a preponderant number of awards of the Third Division of the N.R.A.B. hold that the proper penalty for work not performed is the pro rata and not the punitive rate. This claim is valid to the extent of eight hours at the pro rata rate.

        FINDINGS: The Special Board of Adjustment No. 117, upon the whole record and all the evidence, finds and holds:


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act as approved June 21, 1934;

 That this Special Board of Adjustment has jurisdiction over the dispute involved herein; and

        That the Carrier violated the effective agreement.


                            AWARD


Claim sustained for four hours to each of named claimants at the pro rata rate.

                  SPECIAL BOARD OF ADJUSTMENT N0. 117


                                    i7


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                  /Livings n Smith -- Chairman


W. I. Christopher -- Employe Member G. W. John on -- Carrier Member

 St. Louis, Missouri October 16, 1957

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