EMPLOYES' STATEMENT OF FACTS: On September 14, 1953, the Division Superintendent at Osawatomie Kansas, advertised to clerical employes in Station and Yard service, per Bulletin No. 103, copy submitted for the record, designated as Employes' Exhibit "1," a relief position in Osawatomie Yard, Relief Clerk No. 5, assigned Saturday through Wednesday, with rest days Thursday and Friday to work relief assignments of
Clerk E. E. Kellogg was the regularly assigned occupant of Yard Clerk position, Osawatomie Yard, 12 Midnight to 8 A. M., Wednesday through Sunday, rest days Monday and Tuesday and his work days were changed to Friday through Tuesday, with changed rest days of Wednesday and Thursday (see Superintendent's letter addressed to Clerks, dated September 11, 1953 quoted in the record beginning page 4, Employes' Exhibit 2") and it will be noted that in the same letter the Superintendent addressed to clerical employes, namely, J. L. Jackson, G. E. Mueller, E. E. Kellogg, R. L. Dever, E. L. Obermeier, E. E. Todd and J. E. Doman, several other changes in work assignments and rest days were made on clerical positions in Osawatomie Yard simultaneously with the changes made in the assigned work days and rest days of the position held by Clerk Kellogg.
had the effect of Job abolishment of such changed positions as to work assignments and had the effect of creating new positions which were required to be 6907-18 75
(b) that even if there had been a violation no compensation would be due because the claimant failed to mitigate the alleged damage by taking other employment available to him in the exercise of his displacement rights.
OPINION OF BOARD: We are dealing here with rights of one who, after attaining employment status with the Carrier, was denied a position to which entitled by seniority, because certain military obligations as a Navy Reserve assumed before his date of hire, and kept over a period of about two years while working for Carrier, could not be met on all of the assigned rest days of the new position.
The Carrier acknowledges that Claimant's date of hire, and the prerequisite requirements of fitness and ability under the rule, entitled him to the position as against the successful bidder, but says his "outside obligations" disqualify him.
Those "outside obligations" made it necessary for Claimant to report one Saturday and Sunday of each month for training a member of the United States Naval Reserve. The assigned rest days of the new position were Thursday and Friday.
The Carrier concedes, in effect, that fitness and ability as provided by rule, refers to work performance and not to other working conditions or job requirements. Thus the rule at issue is one for placement of persons in Carrier's employment and does not require that the one claiming the position be in all things qualified before being placed.
Placement is no assurance to the person that he is wedded to the position. He takes same at the known peril that if he can't meet all job requirements, and cannot reasonably and adequately protect the service, he is subject to removal or perhaps discipline and discharge.
The successful bidder, however, does not undertake to protect the position under any and all known or unknown eventualities and at any and all times. If he did, assignments in most cases would be of short duration and rules and practices governing in matters of relief would not have taken on the importance that they have in railroad employments.
In view of Carrier's frank admission that Claimant had and enjoyed the prerequisite seniority and the skill and ability required by controlling rule for placement on the advertised position, there is no escape for holding the Agreement violated.
What may seem like a harsh application of the agreed-on rules can only be explained by saying that this Board has no power to relieve either party of what the rule exacts, of each, by way of a duty to comply. There are and always will be instances where one party or the other finds the bargain it has made to be a burdensome one, and sometimes even oppressive and onerous, but we are powerless to do equity as between them.
In the same vein, we treat of the Carrier's plea that it be relieved of sanctions or reparations for the violation due to what it says was Claimant's failure to mitigate his loss.
It is shown in the docket that when Claimant's bid for the position in question was rejected, he was invited to and did exercise his rights on another position but under protest, giving notice at the time that he would protect later. He never did work the position. During all the time he was out of service, he continued to file time claims for the position in dispute. The period covered is September 26 to October 26, 1953, when he went into military service.
It appearing that Claimant was not obliged by rule to protect on the position, the potential earnings of which Carrier says should be offset against 6907-19 76