Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28807
THIRD DIVISION Docket No. MW-27772
91-3-87-3-563
The Third Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.

(Brotherhood of Maintenance of Way Employes

PARTIES TO DISPUTE:

(Duluth, Missabe and Iron Range Railway Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier, beginning June 3, 1986, failed and refused to allow Machine Operator J. A. Engelmirer to displace junior Machine Opera
(2) Mr. J. A. Engelmirer shall be assigned to the position in question and compensated for ald wage loss suffered beginning June 3, 1986, including but not restricted to reimbursement for all losses sustained as a result of loss of coverage under the Health and Welfare Agreements."

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.

At the time of this claim, Claimant held seniority with the Carrier as a B Machine Operator in the Track Subdepartment. However, Claimant was on furlough due to the seasonal nature of the Carrier's business when the facts occurred giving rise to the claim.

While on furlough, in May 1986, Claimant requested and was granted ten days of vacation. Claimant had earned the vacation time during the previous year. In accordance vacation for the two-reek period between May 19 and May 30, 1986. This meant Claimant received ten days' pay for those dates, even though he was on furlough before and after the
On May 21, 1986, the Carrier posted a bulletin advertising a B Machine Operator position to be assigned to an AFE Gang headquartered at Keenan, Minnesota. The bulletin bore a closing date of May 28, 1986. This posting was pursuant to Rule 4 of the Agreement, which states:
Form 1 Award No. 28807
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92-3-87-3-563
"(a) Except as provided in these rules, all new posi
tions or vacancies of more than thirty days, except those
in Group D classification, will be bulletined and posted
for a period of five (5) calendar days at headquarters of
all gangs in the subdepartment of employees entitled to
consideration in filling the position, during which time
the employees may file their applications with the offi
cials whose names appear on the bulletin. Each bulletin
will show its consecutive number, title of position, date
of posting, and date of expiration; and for each position
thereon will specify whether temporary or permanent, lo
cation and rate of pay, assigned hours, and nature of
work. Appointments will be made in accordance with'Rule
3 within ten (10) calendar days from the date bulletin is
posted. Such notice of appointment will be given in sim
ilarly numbered bulletin form showing name and seniority
date of successful applicant for each position filled.
Copy of bulletin, also notice of appointment will be
furnished the General Chairman."
The Organization argues that, had Claimant not been away on vacation
from May 19 to Nay 30, he would have seen the bulletin and would have applied
for the advertised position. However, Claimant did not apply and the position
was awarded to a junior employee who had filed a timely application in accord
ance with the Rule. The position was awarded on June 3, 1986. Shortly there
after, Claimant sought to displace the junior employee pursuant to Rule 8(a)
which states:

"An employee returning after leave of absence, vacation, or when relieved from official position will return to former position, provided it has not been abolished or senior employee has not exercised displacement rights thereon, or may, upon return or within five days thereafter, exercise seniority rights on any positi he not been on leave of absence, vacation or an official position, subject to qualifications."

The Carrier denied Claimant's attempt to displace and this claim ensued.

The Organization relies on Rules 8(a) and 6(e) of the Agreement. The

irrier insists that neither rule applies to this claim. Having considered the record and the Parties' submissions, the Board must agree with the Carrier.

The language of Rule 8(a) makes clear that it applies only to employees who take vacation while benefit designed to permit an employee to get away from his job briefly for relaxation or recreation. Rule 8(a) obviously was intended to protect an active employee against forfeiting an opportunity while he is away from the property to enjoy his vacation. An employee who claims his vacation entitlement while on furlough is Form 1 Award No. 28807
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nothing more than his claiming of the vacation pay he has earned. Just because a position happen the posting had occurred at any other time while he is furloughed. An employee on furlough is normal whether he is receiving vacation pay or any other type of income at the time, and Rule 8(a) was not designed to alter that proposition.

Rule 6(e) is similarly inapplicable. It applies to the procedure for recalling furloughed laborers, but does not forbid the filling of Machine Operator positions in the customary way which the Carrier followed in this case. In its entirety, Rule 6 states:

"Retaining Seniority

(a) Employees laid off account reduction in force will retain full seniority under the provisions of paragraph (b) and (c) of this rule.

(b) When an employee laid off by reason of force reduction desires to retain his seniority rights without displacing a junior employee, he must within ten calendar days file his name and address through his foreman with the Roadmaster or the Supervisor of Bridges and Buildings with a copy to the General Chairman, and n of any future change of address.

(c) When there is an increase in forces of laborers, the Company will call back in seniority ord particular gang or section the laborers who have indicated a desire to return where the force is to If the required number of men cannot be secured, the Company may fill such positions by placing at work any employees holding seniority in the group. Any such employee can be displaced at any time by any employee who is out of service holding seniority in the same group and who has protected his rights under paragraph (b) of this rule.

Employees will be notified in seniority order and will return to service within ten calendar days thereafter; failure to return to service within ten days, unless prevented by sickness or other unavoidable cause, will result in loss of all seniority rights. Employees will be forced back in reverse seniority order.

In the application of this rule, it is understood that it is permissible to fill positions by assigning senior men who have signified their desire to be assigned to such positions in accordance with paragraph (f) of Rule 4 and paragraph (g) of Rule 5 before calling back men who were laid off on the particular gang or section where the force is to be increased.

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(d) Laborers in section crews laid off account
reduction in force who have complied with the provisions
of paragraph (b) of this rule can have the option of
remaining out of service if their services are not needed
until they can be returned to the particular crew or gang
where they desire to work, or they can exercise their
seniority under paragraph (c) of this rule.

(e) Employees may be recalled by telephone. Any employee not contacted by telephone will be given a written notice of available work."

Because laborer positions are not bulletined, but instead are filled by the Carrier by first contacting furloughed laborers in seniority order, Rule 6 goes to extra lengths to assure that senior furloughed personnel have notice before a junior person is called back. It is clear that this requirement is confined to the f (d) of Rule 6 are addressed explicitly to laborers. The Carrier made this point during consideration of the claim on the property, without rebuttal by the Organization. Consequently, it cannot be held that Rule 6(e) required the Carrier to contact Claimant by telephone or written notice before awarding the B Machine Operator position at Keenan, Minnesota.

Since no rule of the Agreement is shown to have forbid the Carrier to do what it did in this case, the claim must be denied.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

Attest:

Nancy J. ,"r - Executive Secretary

Dated at Chicago, Illinois, this 15th day of May 1991.