NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-22912
Richard R. Kasher, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE;
(Chicago, Rock Island and Pacific Railroad Company
( (William M. Gibbons, Trustee)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that;
(1) The Carrier violated the Agreement when it refused to permit
Group 14 Machine Operator Leon Harper to displace junior Machine 0-Aerator
Cebern Scott on January 12, 1978 LSystem File 11-P-589/L-126-1683/.
(2) As a consequence of the aforesaid violation, the claimant
shall be allowed the amount of pay he would have received had he been
permitted to displace the junior machine operator on the Jordan Ditcher
beginning January 12, 1978 and continuing until he is permitted to do so."
OPINION OF BOARD; Claimant was an operator of Group 14 equipment -
Heavy Work Equipment - having established seniority
in that position on February 22, 1974. On January 9, 1978, his position
was abolished and on January 12, 1978 he attempted to displace a junior
Group 14 machine operator, who was assigned to a Jordan Ditcher as
assistant operator.
Rule 6(c) of the Agreement Governing Hours of Service, Rates of
Pay and Working Conditions reads as follows;
"(c) Except as provided in paragraph (b) of this rule,
an employee laid off or displaced may displace a junior
employee in the same rank and must exercise his seniority
in such rank before displacing an employee with less
seniority in the next succeeding lower rank in hfs
respective seniority group as indicated in Rule 1.
After exhausting seniority in his respective seniority
group, he will have the right to return to the seniority
group in which he may hold seniority."
On January 11, 1978 the Carrier advised Claimant that he would not
be allowed to displace on the Jordan Ditcher and he was furloughed on the
next day. On February 17, 1978, the Organization filed the claim now before
this Board and referred to a Bruce Livingston as being the junior employe
whom Claimant desired to displace. The error in identification was subsequently corrected and Cebern
employe.
Award Number 22972 Page 2
Docket Number NW-22912
The Carrier first denied the displacement on the ground that
claimant was not, in fact, senior to the man he desired to displace.
The Carrier erred in this regard; Claimant was senior to Mr. Scott, and
under Rule 6(c) should have been allowed to displace. The Carrier subsequently raised. the defense t
Ditcher operator, but this Board must reject the defense since it was not
timely raised on the property.
Claimant was recalled on March 6, 1978 to a Group 14 position.
Thus, between the dates of January 12, 1978 and March 6, 1978, Claimant
was aggrieved, since, under Rule 6(c) he should have been allowed to
displace the junior employe Cebern Scott. This Board therefore directs
that Claimant be compensated at the assistant operator Jordan Ditcher rate
for that period, less any outside earnings.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 Division of the Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained in accordance with the Opinion.,-
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~~ ppr
Executive Secretary
Dated at Chicago, Illinois, this 12th day of September 1980.