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:


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.



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






                          By Order of Third Division


Attest
'-Nancy Jr->Ver - Executive Secretary

Dated at Chicago, Illinois, this 17th day of December 1990.