NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-25441
Eugene T. Herbert, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Western Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
permit Foreman D. S. Garcia to displace a junior foreman on Extra Gang No. 8 on
and subsequent to August 9, 1982 (Carrier's File MofW 148-501).
(2) Claimant D. S. Garcia shall be allowed pay (straight time and
overtime) equal to that paid to Foreman R. Gasco during the claim period.
OPINION OF BOARD: Claimant sought, unsuccessfully, to exercise his seniority
by displacing a Student Foreman who had been assigned a week
earlier as a vacation relief foreman.
Although Claimant's assertion of seniority is undisputed, he was not
available on the date of the assignment in question.
While the Agreement between the Parties provides for displacement by
senior employes, Carrier cites Article 12(b) of the National Vacation Agreement
of December 17, 1941, as amended, which reads as follows:
"(b) As employees exercising their vacation privileges will
be compensated under this agreement during their absence on
vacation, retaining their other rights as if they had
remained at work, such absences from duty will not constitute
'vacancies' in their positions under any agreement. When
the position of a vacationing employee is to be filled and
regular relief employee is not utilized, effort will be
made to observe the principle of seniority." (Emphasis added)
The Board finds that provision controlling in this case. We cannot
hold that the Carrier made no effort to observe the principle of seniority in
view of Claimant's unavailability on the date of the assignment.
Accordingly, Organization has failed in this case to establish a violation
by Carrier of any Rule of the Agreement.
Award Number 25400 Page 2
Locket Number MW-25441
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.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. - Executive Secretary
Dated at Chicago, Illinois, this 15th day of April 1985.