PARTIES TO DISPUTE; (Brotherhood of Maintenance of Jay Employees
 (Burlington Northern Inc.

(1) The Agreement was violated when Junior Machine Operator Frank Gutierrez was permitted to displace Machine
 Operator Guy M, Gordon on September 3, 1971 (System File 22-3/r,W_go, 11/3o/,n).

 (2) Machine Operator Gordon "be paid the difference in the rate of pay between a machine operator and track laborer for all time worked by Mx. Gutierrez since . . . September 3, 1971".

 OPINION OF HOARD: We concur with the Carrier's statement that:

The Carrier calls our attention to the fact that Employe's Exhibits A and B were not presented in support of the instant claim while it was being handled on the property, and consequently this Board does not consider these alleged seniority rosters to be a proper part of this record.

 The circumstances surrounding this matter are historically unique. The Agreement between the parties became effective May 1, 1971, and brought into a single document agreements covering employes of the newly merged former Great Northern Railway Company, the former

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 orthern Pacific Railway Company, the former Chicago, Burlington & Quincy Railroad Company, and the former Spokane, Portland & Seattle Railway Company. Thus, the dispute arose during a transition period involving the dcvetailing of seniority, rearrangement of districts, and acquiring of seniority in classes not heretofore held by employes. Clearly the consolidation possessed a magnitude and complexit,,r posing difficulties far beyond routine administration. Necessarily, during the period of transition to the working of the new Agreement, there
































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                  Award Number 20203 Page 3

                  Docket Number MW-20132


The assignment of Claimant to the tamper on March 4, and the assignment op Gutierrez to the tacrmer on April 13, were not bulleted

 assignments. enjoyetdhiGroupe3 senior the near .agreement of May 1, 1971,
 neither y. On April 30, 1971, at the end of
 the working day (Friday), we are informed by the Carrier that "the
 claimant began a weeks' scheduled vacation, and the tamping machine he
 had been operating was sent to the site of another tamping project
 about 170 miles east of Fort Morgan .It 0n Saturday, Map, 1, 1971, the
 new Agreement became effective, pn Monday May 3. 1971, while Claimant
 was on vacation, Gutierrez continued working on his tamping machine, a
 Group 3 machine. On May 10, 1971, Claimant returned from vacation and
 worked on an off-track weed mowing tractor, a Group 4 machine. He
 continued to operate this weed mowing tractor until 4u-ly (, 1971
 this date, Gutierrez went to another Group 3 machine. Gutierrez worked
 on this other Group 3 machine ,until August 20, 1971, when he went on
 vacation, with the abolishment of the job. On September 3, 1971,
 'Gutierrez returned from his position and was placed on the Group 3
 taper being worked by Claimant, asserting a claim to an exercise of
 greater seniority rights than that of Claimant.

 On the basis of seniority date of sectionman, on the basis of age, and on the basis of beginning date of work on tamper, it would seem clear that Claimant was senior to Gutierrez. Nevertheless, the Carrier contends that Claimant was not working on the tamper (being on vacation) on the effective date of the Agreement, May 1, 1971, whereas Gutierrez was actually working on the tamper on may 3, ;971.

 in May) be senior to Group 3 seniority beginning
                          Claimant's Group 3 seniority which


e Carrier argues would not have begun until July 6o
 1,71, when he
 zirst started actual work on the Group 3 tamper subsequent to the effective date of the May 1, 1971 Agreement.

 view of the particular circumstances surrounding the matter, this Hoard does mot believe that negotiators who had in mind the thought of birth-dates as material factors in determining seniority date would have intended that an older employe, as here, with earlier seniority as a sectionman, and with an earlier starting date on a machine meriting a subsequently-to-be acquired Group 3 seniority, should become junior to a younger man on all of these factors solely out of a strange quirk of fate that his vacaticn co=enced on the effective date of the new Agreement. Nor do we think Rule 8 G. supports

          such seniority Claimant forfeited Group 3 seniority by failing to exercise ~y on his return from vacation on May 10, 1971, inasmuch as th_s Rule necessarily presupposes that such seniority has already been accorded him with the right to exercise such seniority.

                  Award NUmber 20203 page 4

                  Docket Number MW-20132


        In the historically unique circumstances of this particular


Claimant's correct seniority date as a Rank A, Group 3 machine case, and without establishing a precedent, the Hoard finds that
 operator is the first date of such roster (May 1, May 2, or May 3, 1971), and also determines that the Carrier should not be penalized monetarily by the failure of Claimant to exercise his Group 3 seniority immediately upon his return from vacation on May 10, 1971, which failure led ultimately to the instant claim.

        INGS: -'he Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


'."hat 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 Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and

 That the Agreement was violated to the extent indicated in the Opinion.

                  A W AR D


        Paragraph 1 of Statement Claim is sustained.


        Paragraph 2 of Statement of Claim is denied.


                        NATIONAL RAnMppD ADjMTKM BOARD

                        B' Order of Third Division


        ATTEST: executive Secretary


Dated at Chicago, Illinois, this 29th day of March 1974,