Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7882
 SECOND DIVISION Docket No. 7+05
 2-CMStP&P-MA-'79



Parties to Dispute:

Dispute: Claim of Employes:


















Foam 1 Award No. 7882
 Page 2 Docket No. 7405
 2-CMStP&P-MA-'79
 continuing on each workday thereafter until assigned to the
 position of Machinist assigned to Kenneth Pearson in the Tacoma
 Locomotive Department.
 Findings:

 The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The tarsier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193+.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The question involves rights of seniority under the Shop Craft's agreement effective September 1., 1949, as amended, and the upgrading agreement effective April 1, 1972. The carrier filled machinists vacancies at the Tacoma ,Locomotive Department Shop by the transfer of Machinists Regular Apprentice Pearson and Machinists Helper Wayrynen from Deer Lodge, Montana. Both had acquired seniority dates at Deer Lodge located some 700 miles east of Tacoma. On the other hand, the claimants are machinist helpers with Tacoma point seniority. While the claim was in process on the property, one claimant resigned and another claimant was substituted.

 The key issue here is whether or not the rules in the above agreements authorize the advancement to positions of machinists in Tacoma in accordance with the carrier's actions.

 There are threshold objections which seek dismissal of the claims on procedural grounds. It is alleged there is a variance in the amount claimed on the property and the amount claimed as it progressed to this Board. In addition, the substitution of claimants is asserted to be improper in that the resignation of the original claimant and substitution required that an initial claim should have been filed again. In effect, it is alleged the claim was never presented to the carrier officer authorized to receive claims in the first instance. The procedural issues may be boiled down to the question whether there has been a substantial variance between the claim handled on the property and that presented to the Board. We believe not. The interpretation of collective bargaining agreements requires that they b e read fairly and liberally, disregarding strict technicalities and undue legalism. Here we do not believe the variances are substantial and warrant dismissal on the grounds asserted. The substance of the claim was known from the outset as one questioning the application of the seniority provisions and that claim remained essentially unchanged. Award 3954
 Form 1 Award No. 7882
 Page 3 Docket No. 7+05

(Anrod). The crux of the claim is the Rule violation with the monetary claim incidential. Third Division Award 20090 (Lieberman). Carrier also maintains the claim is improper in that it calls for payment of a penalty. We defer consideration of that question pending consideration of the seniority question on its merits.

 We are persuaded that Rule 31(a) of the agreement controls here. In pertinent part it provides:

In the Special Board of Adjustment No. 570 Award No. x+17, Referee O'Brien dealt with the other employees furloughed in Deer Lodge,, albeit a different issue, and stated with respect to those employees:

and further:

The upgrading agreement provisions under Sections 2, 3 and 5 provide a scheme permitting the advancement for apprentices and helper apprentices and helpers under specified conditions absent a furloughed machinist. One of the conditions under Section 2 and 5 permits advancement "in line with their seniority".

 Clearly, seniority is personal to the employee and it has a definite and clear meaning as defined by the underlying agreement. Here the Deer Lodge employees could have no seniority other than at that point (Rule 31(a) quoted above). They never acquired seniority at Tacoma and on this basis carrier's position loses force.

 Section 3 of the upgrading agreement related to apprentices and does not include a specific reference to seniority. However, we believe the whole tenor of the agreement, in keeping with Rule 31(a), contemplated the same seniority concepts and the proper construction of Section 3 contemplates similar seniority considerations.

 On this basis, we hold the transfer of the Deer Lodge employees to Tacoma was improper in that it deprived eligible Tacoma Shop employees of these assignments. It remains to be determined the proper amount of the monetary avrard. The claimants base their claim on a penalty and rely upon
 Form 1 Award No. 7882
 Page 4 Docket No. 7405

certain awards cited, Awards Nos. 1269 and 4256. In addition, they assert that carrier withheld employees from their assigned positions constructively and the claimants are entitled to eight hours pay per day at the full journeyman's rate. We do not agree. We do not read the agreements to provide for a penalty. Moreover, the basis for a money a-mard where there is a Rule violation, and in the absence of a specific penalty provision, is compensatory damages for their actual monetary loss. Third Division Award No. 15062 (Ives). The claimants, therefore, are entitled to pay at the machinist's rates for the days worked of'f'set by the compensation earned in their classification during the same time .period. It follows that claimants are entitled to the differences between the amount actually earned and the higher machinist rate they would have earned for the same period.

                      A W A R D


Claim sustained and monetary award in accordance with the foregoing findings.

                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By
      os~marie Brasch - Administrative Assistant


Dated at `Chicago, Illinois, this 4th day of April, 1979.
 . - ~ Dissent Of Carrier bfembers
                                      To

                                      Award ''T882, Docket ITO. 7405

                                      (Referee ~~lallace)


          Dissent to this Award :.s necessary because the Majority has failed to give due regard to the procedural requirements of this Boar, as well as pertinent requirements of the contract. At page 2 of this Award, the author sates:


          "The procedural issues may be boiled down to the question whether there has peen a substantial variance between the claim handled on the property and that presented to the Board. We believe r.nt.:ere we do not believe the variances are substantial and warrant dismissal on the grounds asserted." The factual situation was that after the Employees' request that 'Claimants Kruse and :.'.owrey be "set up" eras denied because of tile lack, J° aualif1Cat' U:i of Kruse, (Yowi7ey had resigned), the ~~:pioyees on ?=arch 12, 1975 submi. t ted the following claim to the A:aster Yechan i c

          "Frank Kruse and Bruce 11.10wrey should be set up and paid the difference in salary starting February 17, 1675. They are the claimants of this time slip." Subsequent appeal of this matter resulted in the Employees claiming both compensation, at the overtime rate as a machinist and as a. helper; and an undetermined amount of overtime in addition to the compensation claimants received in their helper positions, The addition of r. Strasser was only because he was the next senior helper behind Y.ruse arid ~.~wrey. The Carrier vigorously objected to the raodifi-

. Dissent Of Carrier Members
 - To
 ' Award 7882, Docket rya. 7tW5

                                2.


          cation of the claim-in this manner. Under similar factual circumstances this Board has. held: Third Division Award 174'~6 (McCandless)


            "A careful review of the record supports the Carrier's_DOSi- tion that Lcrolosyes altered its claim as to claimants and amounts claimed several times on the property, as well as in its submission to this Board. The burden of proof is on Employes to specifically identify, the claimants and to sub-

            = stantiate by a preponderance of the evidence that they are

            entitled to the exact sums they claim. It is not necessary

            to look to the merits of the claim in this instance because

            the claimants here have failed in this burden, and conse

            quently this claim :gust be denied. (Emphasis added)

            bird Division Award 13235 (Dorsey):


          "It is ou_r opinion that the phrase "usual manner" as employed

          in Section 3, rust (i) of the Act and the prescribed procedures

          found in the August'.- 21, 195 Agreement, contemplates an orderly

          process, either prescribed or customarily adhered to, for con

          sidering the merits of a claim as presented; and, during pur

          suit of the process Petitioner may rot amend the particulars

          of the claim without a?reene:a by the Carrier. To hold other-

          wise w^uld destroy the anneals orocedt~re on the proper ty, in

          that in amending the claira in successive steps of the procedure,

          the claim develops i;ato a new and different claini-which -was not

          presented "to the officer of the Carrier authorized to receive

          sane ;" and, therefore, could not be cor_sideTed on the y ropert T

          in the "usual manner up to and including the chief operatirg

          officer." .... (emphasis added)

          The record in this case manifestly substantiates that the claim

          eras amended and. altered at each level of appeal. And

          at each level of handling the Carrier vigorously objected to such

                              Dissent Of Carrier Members

                              To

      . Award 7882, Docket No. 7405


                        3.

machinations. As was stated in Award 13235 supra., the successive
 amendment of this claim did not provide the "orderly process" sought
 for rational and reasonable grievance resolution. It has convoluted
 such a purpose into its opposite:
 The author's conclusion "that the claim remained essentially
 unchanged" is asserted to be supported by Second Division Award
 3954 (Arxod) in which the following dicta is found:
 Award 3854.:

 "It is a well-established rule of law generally observed in the application and interpretation of a collective bargaining agreement that such an agreement, as a safeguard of industrial and social peace, should be given a fair and liberal . interpretation consonant with its spirit and purpose -- disregarding, as far as feasible, strict technicalities or undue legalism which would tend to deprive the agreement of its vitality and effectiveness." The spirit and purpose referred to in the above citation eras , that the parties would attempt to settle disputes in successive handling on the property. That purpose is effectively frustrated when at each level of handling one party interjects changes, amendments and makes wholesale revision of the claim that has been handled. As was stated in Anrard 1Q147 ( all )

    "On the basis of the foregoing we gird that the claim before the Board ores not handled on the property in accordance with Rule ?5. As Carrier timely raised its objection and there being no evidence of an expressed or implied waiver by the Carrier we ;:Till dis^iiss the claim. Awards 1214c,0, 13?35, I`'322, and ot?:er s."

                              Dissent OP Carrier ::embers

                              To

                              Award 7$$2, Docket rio. 705


The handling ox' this claim on the property was substantially altered and amended. By the conclusion of the author of this Award that such permutations were not substantial encourages similar chaotic tactics in the handling of future disputes. Such a conclusion can only inhibit the process of orderly grievance resolution in this industry.
 If the conclusion that the claim "remained essentially uncharged" is to be accepted, then the dispute was and continues to be one of the de ter-a3.r_ation of qualifications.
 It is a principle of this Board, enunciated in so many Lard Awards.,that the Carrier ;?eter-nines an ec;ployee's qualifications and that such action will not be reversed unless there is su:stantial probative evidence submitted supporting the employee's qualifications or the arbitrariness of the Carrier's actions. (See Third

 Division Awards 21328, 212.3, 20361, 19129, 16871, 15494; Second

 Division Award 7.15 as representative).

    Me facts are that Claimant :ruse was found to be ftat qualified

                                      - a..


for a Machinist position, and Claimant Strasser who had only fifteen

 (15) months of service at the time was less qualified than Kruse.

 Nowhere in the entire record of this dispute was there any evidence
                              Dissent Of Carrier Members

                              To

                              Award 7882, Docket No. 74~05


presented to refute the Carrier's determination of qualifications.
 The result of Award 7332 is that the Carrier's determination of
 qualifications is not relevant and is unimportant in the assign
 ment of machinist positions on this Carrier. Such a conclusion
 is absurd.
 The April 1, 1972 Agreement, that was allegedly violated in
 this case, sets forth its purpose as follows:

 "When new positions or vacancies of machinists occur and no
 machinist bids on the bulletin as provided for in the agree
 ment of September 1, 1949, there is no ilzrlouhed machinist
 responding upon recall, and no qualified mechanics a^e a·.Tail
 able for hire, apprentices, and them 'relpers may be advanced
 to position of machinist in the following procedure:" (S,npha
 sis a~'..ded
 There were no furloughed machinists or oualified mechanics
 available for hire. Claimants were Helpers at Tacoma while Pearson
 and ;payrynen were upgraded apprentice and machinist respectivel,;r
 under the provision of the April 1, 1972 Agreement at Dyer Lodge,
 Montana (Section 2 and 3). As noted above, the Agreement stipulates
 that the order of advancement was first apprentices "and the::
 helpers" to fill vacancies.
 Sections 2, 3, and 5 of the Agreement state:

    "Section 2. If no i'Ztrloughed machinists transfer to the vacancies, reular apprentices and helper apprentices who have com-

          Q.

                          Dissent Of Carrier Members

                          To

                          Award 7882, Docket No. 7405


                    6. wool


pleted three years of their training ma~, be adva::ced in line with their seniority."

 "Section 3, Apprentices who have completed 366 days of their training may be advanced next."

 "Section 5. If machinists are still needed, then machinist helpers with tyro (2) years seniority mar be advanced in line with their seniority." While the Author of this Award states "one of the conditions" necessary for advancement under this Agreement, he has ignored the phrase immediately preceeding the quoted condition i.e., "2-M be advanced ...." The permissive nature of Sections 2, 3, and 5 clearly supports the conclusion that, upon completing, the stipulated training period first apprentices a_^.d then helpers may be considered for advancement. Carrier complied with Sections 2 and 3 in this case in filling the vacancies rhile Claimants could only be considered under Section

 5, (Claimant Strasser, at that time, did not meet the tyro years senior
 ity requirement of Section 5 having only 15 months of service: a point
 specifically made in the panel discussion of this case, tat was sim
 ply ignored by this Award).
 'be point seniority argument, in this case, is valid only if
 it is determined that it is only those employees at the specific
 location of the vacancy .:hat mar be considered for advancement. But
 the April 1, 1972 Agree·Zent deals :with iLrlou<;ied machinist trans-
                            Dissent Oz'' Carrier Members


      . To


                            Award ?L82, Docket Pio.7405


                        7.

(erring to the location of the assignment. Such individuals per Rule 31(a) Would not carry their prior seniority with them, but the fact that they may not already have seniority at the location oz'' the assignment does not prohibit the assignment. While it is "albeit a different issue," the Author o.4 this Award has nevertheless erroneously relied upon Award 417 of Special Hoard of Adjustment 570 on this point. (This was also !r,ewmatter first raised before this board and should have been ignored).
 Finally, while the argument that "qualifications are of no
 import" was apparently accepted by the Author of this Award, he
 found, at the bottom of page 3, that the Carrier's action:
 "deprived eligi'ole Tacoma Shop employees ......
 Such a conclusion is not supported bar the record. There were no eligible (qualified) Tacoma Shop employees available for the machinist positions; certainly not the claimants in this case.
 If nothing else, the record clearly substantiates that Claimants were not shown to have been entitled to the machinist positions vacancies at Tacoma.
 This Award reflects a clear misundersta:zdinj of the facts and the principles established by this Board for resolution of disputes.
 On that basis ire register our dissent.

 Dissent Of Carrier Members
 To
 A;vard 7882, Docket No. 705

.!~/ r V r

P. V. Varga


Q` j ri
 (
    W'. Gvhc~ ~ n


    ~. .=ason


G. Ii. Vernon

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