Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28839
THIRD DIVISION Docket No. MW-29072
91-3-89-3-507
The Third Division consisted of the regular members and in
addition Referee Gerald E. Wallin 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 assigned junior employe E. Colburn instead of Mr. S. Shumaki to work as a trackman on the SC-250 Camp Car Gang from May 18 through May 25, 1988 (System Docket MW-52).

(2) As a consequence of the aforesaid violation, Mr. S. Shumaki shall be allowed ten (10) hours' pay at the trackman's rate for each date from
May 18 through May 25, 1988."'

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.





Claimant was recalled to service from furlough in April, 1988. He initially failed his return to work medical examination on April 5, 1988, but successfully passed a repeat examination on May 18, 1988.

The Organization contends the Agreement was violated when Carrier provided Claimant incorrect information about work opportunities available to his seniority. According to the Organization's evidence, which includes Claimant's narrative stateme Form 1 Award No. 28839
Page 2 Docket No. MW-29072
91-3-89-3-507

made frequent attempts to exercise his seniority. The Youngstown Division Engineer's Headquarters had recently been relocated to Pittsburgh and, due to confusion and inexperience, the assignment clerks in the Headquarters told him that no work was available to him. The record on the property shows that a junior employee did work sometime between May 18 and May 26, 1988. Claimant's seniority would have entitled him to displace this junior employee if he had been properly informed about the junior employee.

Carrier does not deny it has an obligation to provide correct information. It disputes, however, Cla provided erroneous information. Carrier says that Claimant.wanted to wait a few days to return to work. The Agreement allowed Claimant 10 days to exercise his seniority. Carrie into a Vehicle Operator position on May 26, 1988.

It is the conclusion of the Board that the Claim must be sustained in part. After careful review of the record, the Board finds the evidence to weigh in favor of the Claimant's position. There is probative evidence in support of the allegations of the Claim whereas the Carrier's position relies only on the unsupported assertions of the various hearing officers. It is undisputed that 1988 was the first year that the recall of Youngstown Division employees was performed in the Pittsburgh office. In addition, successful completion of the repeat examination on May 18, 1988, indicates that Claimant was making himself immediately available. Finally, there is Claimant's unrebutted written statement about available work.

Carrier attempted to modify the information in its June 29, 1989, letter regarding the junior employee's start date. But the record on the property was closed prior to Carrier's November 30, 1989, attempted modification. A procedural rule were not part of the record on the property. The record in this matter provides no compelling basis
The record is devoid of a basis for awarding Claimant pay for May 18, 1988. There is no information which suggests that Claimant would have completed his repeat medical e work a full day. Accordingly, Claimant shall be allowed all earnings lost for the time worked by the junior employe for the period from May 19, 1988, through May 25, 1988.




Form 1 Award No. 28839
Page 3 Docket No. MW-29072
91-3-89-3-507
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division

Attest: r
lancy J. p P-Executive Secretary

Dated at Chicago, Illinois, this 25th day of June 1991.