Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28624
THIRD DIVISION Docket No. MW-28455
90-3-88-3-250
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier instructed regularly
assigned Painter C. Short, instead of furloughed Water Service Foreman K.
Kratz, to perform water service foreman's work on August 29, 1986 (System File
BG-6-86 /TM-17-86).
(2) As a consequence of the aforesaid violation, Mr. K. Kratz shall
be allowed eight (8) hours of pay at the water service foreman's pro rata
rate."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Based on a reduction in force, the Claimant and another employee were
required to leave their positions as Water Service Foremen (Group 2). The
other employee, who was senior to the Claimant, exercised his seniority on a
position as Painter (Group 3), while the Claimant herein was furloughed.
When a one-day vacancy occurredfor the position of Water Service
Foreman, the Carrier assigned the work to the employee in the position as
Painter.
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Form 1
Page 2
Award No. 28624
Docket No. MW-28455
90-3-88-3-250
The Organization argues that the Claimant should have been returned
to service under Rule 31(b) as the "senior unassigned" employee holding seniority as Water Service F
"(b) New positions or vacancies of thirty
(30) calendar days or less duration shall be
considered temporary and may be filled without
bulletining except that senior unassigned employees in the seniority rank will be given
preference in assignments, if available. Such
assignment not subject to displacement."
The Carrier argues that the other employee who was assigned the
temporary position was not only senior to the Claimant but also was "unassigned" as a Water Service
The question for resolution here is whether "unassigned," as stated
in Rule 31(b) refers to an employee with seniority as Water Service Foreman,
regardless of his assignment in another position, as contended by the Carrier,
or does "unassigned" refer only to an employee "unassigned" to any position
(i.e., furloughed), as argued by the Organization.
The Board finds the Carrier's position is correct. Rule 31(b) refers
to "senior unassigned employees in the seniority rank." The other employee,
being "assigned" to the Painter position, did not relinquish his seniority as
Water Service Foreman. That position is in a seniority rank separate from
that of Painter. Thus, the Claimant was not the senior unassigned employee
holding seniority as Water Service Foreman. The Carrier properly assigned the
position to the other employee.
Third Division Award 26819 involving the same parties, also concerned
a dispute as to whether a furloughed employee was entitled to a temporary
vacancy which had been given to an employee assigned to another position.
Award 26819 states as follows: . -
"Nevertheless, the Board finds no merit in
the claim, under the particular circumstances
here involved. First, the transferred employee
held seniority in the Roadway Machine Operator
classification and was senior to the Claimant in
such seniority. Second, the·work involved was
within the same craft and department, rather
than assigned to someone outside such craft and
department."
Form 1 Award No. 28624
Page 3 Docket No. MW-28455
90-3-88-3-250
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
'-Nancy Jr->Ver - Executive Secretary
Dated at Chicago, Illinois, this 17th day of December 1990.