PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "This is to serve notice, as required by the rules of the
 National Railroad Adjustment Board, of Brian R. Johnson's intention to file an ex-pane submission within thirty (30) days of the date hereof covering an unadjusted dispute between Brian R. Johnson and the Consolidated Rail Corporation involving the following unadjusted claim:

(1) The loss of seniority by Brian R. Johnson in the following classes: Foreman, Hy-Rail Patrol Operator, Track Welder, Division PMO, District PMO, for failure to bid the position of Maintenance Helper is in violation of Rule #1 of the BMW Agreement with the Consolidated Rail Corporation in that Rule #1 specifically provides that an employee will lose seniority only in such higher rank that he fails to bid, not all ranks in which he holds seniority.

 (2) Brian R.-Johnson be restored all seniority in the higher ranks above described and reimbursement be made for all wage loss suffered."'

 OPINION OF BOARD: The essential facts in this case are undisputed. The basic
 question before us is the appropriate application of Agreement Rule which is referenced hereinafter:







        otherwise agreed to between the Management and the General Chairman of the Brotherhood of Maintenance of Way Employes.


        No change in roster dates in the highest class in which the employe holds rights as existing on the effective date of this agreement will be made except as to promotions which occur on or subsequent to such effective date."


The record shows that Claimant established a seniority date as Trackman on the Providence District on September 8, 1975. He was subsequently awarded a position of Hy-Rail Car Patrolman on September 13, 1976 which also carried seniority status in the following position classes:

        Track Welder

        Division Power Machine Operator

        District Power Machine Operator

        Maintenance Helper

        Track Maintenance Operator

        Hy-Rail Car Patrolman Helper and Track Welder


This was a routine and pro forma positional designation. Claimant was later reduced in class and was working as a Trackman when on April 22, 1980, a position of Maintenance Helper was advertised and he did not bid on this position. He was apprised by the Division Engineer by letter, dated August 22, 1980, following discussions concern in the higher classes, consistent with Rule 1 (Supra). Claimant did not respond to this communication until April 3, 1981 when his attorney notified Carrier that he was protesting the August 22, 1980 seniority forfeiture action. On August 20, 1981, Claimant was sent a recall notice from furlough status, which was signed by him on August 22, 1981 but he did not report to service. He was terminated pursuant to Agreement Rule 3, effective September 22, 1981. The pertinent portion of this is cited as follows:

        "Employes laid off by reason of force reduction will retain their seniority rights. They will keep the officer in charge advised of their address. Failure to return to the service within ten (10) days after being so notified at the address last given, the employe will forfeit all seniority rights."


In defense of his petition, Claimant contends that he was improperly removed from his seniority status in the aforesaid higher ranked classes, since Rule 1 applies only to the loss of seniority in the higher ranked position, which the employe failed to bid on and accept. He argues that if the parties intended to apply Rule 1 in a more expansive fashion, it would have been relatively easy at the time the Rule was written to craft a more comprehensive provision. He asserts that he was never informed that Carrier observed as a matter of practice a broader application of seniority forfeiture., and vas never accorded a formal hearing on the property to determine his claim.
Carrier contends that when an employe has been required to return to a lower rank and then fails to bid for a position to a higher rank, the employe automatically forfeits seniority in all ranks higher than the position in which
                      Award Number 24423 Page 3

                      Docket Number MS-24478


he is currently working. It asserts that this practice has been uniformly observed on the property by the contracting parties and argues that the Organization concurs with its interpretative position. It avers that Claimant has not demonstrated a contrary practice or application, but maintains that he is seeking a variant construction that comports with his understanding of the Rule. It argues that the claim is now moot since Claimant was properly terminated on September 22, 1981 when he failed to return to service.

 In our review of this case, we agree with Carrier's position. While an employe has the right to contest a particular rule's application, it is difficult to prevail if the signatory parties unequivocally agree on a different interpretation. It would be judicially imprudent for this Board to read into Rule 1 a more restrictive application when the weight of the evidence conclusively shows that the Organization and Carrier intended the seniority forfeiture provision of Rule 1 to cover all the higher ranked seniority classes. For us to, conclude otherwise would be an unwarranted usurpation of the collective bargaining process. Carrier has amply proven that an employe who fails to bid on a higher ranked position, forfeits seniority in all ranks higher than the position the employe is currently working. The Labor Organization who negotiated and administered this provision concurs with this view. Claimant has not proven that Carrier followed a more restrictive on situs practice. He merely seeks seniority protection which the signatory parties jointly concede does not exist. As a matter of judicial practice, we are estopped by the Railway labor Act 1926, as Amended, and the decisional law of all the Divisions from rewriting a labor Agreement. We can only construe and apply what the parties intended. In the instant case, the record clearly shows that the contracting parties manifestly intended that the seniority forfeiture language of Rule 1 applies to all higher ranked positions, and we are constrained to give effect to what the parties intended. By his failure to bid on the Maintenance Helper's position, Claimant forfeited seniority in all ranks higher than the one in which he was working. When he did not report for duty in August, 1981, he was terminated from service in accordance with Rule 3, which is a self-executing provision and his claim to that extent is moot.

        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 not violated.

                      Award Number 211423 Page 4

                      Docket Number MS-24478

                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By _-.rte ,_,~ .
    ' Rosemarie Brasch - Administrative Assistant


Dated at Chicago, Illinois, this 15th day of Jtme 1983·

 i