(g) Foremen, mechanics, helpers, and employes of like rank in other departments who are subject to the provisions of this agreement, after having exhausted their rights in the class in which employed, shall have the right to drop back to the next lower classification in line with their seniority in that classification. To be entitled to drop back to the next lower classification and retain seniority in the higher classification the employe must have exhausted displacement rights ov higher classification if qualified for the position held by the junior employe (an employee may not disqualify himself), otherwise if he exercises seniority in a lower classification he will forfeit seniority in the higher classification. Employes who regain seniority in a higher classification under this rule and who are occupying a position in a lower classification will be subject to assignment by bulletin per Rule 11 to positions in the highest classification available in line with their seniority, and failing to respond to notice of assignment within seven calendar days will forfeit seniority in the higher classification.

(h) An employe who returns to a lower classification and retains seniority in a higher classification as provided in paragraph (g) of this rule may if he so desires waive right to work extra or temporary vacancies other than assignment by bulletin per Rule 11 to temporary vacancies bulletined as such by filing written notice with the carrier officers authorized to issue bulletins and assignments in all seniority districts where seniority rights are held with copies to the local chairman. However, they may after an elapse of 30 days after such waiver countermand this waiver with another letter stating they desire to be used for such extra or temporary work. Employes who do not waive their right to `such extra or temporary work' or who countermand such waiver must report when called and the same shall be considered an exercise of seniority. Employes called for extra work as required

Rule 11. ***

(b) When vacancies bulletined under this rule are not filled by reason of no bids from qualified employes, the position will be filled by ((11 appointment of the senior

unassigned employe in that classification, (21 appointment of the senior qualified employe, from the next lower classification or l31 the hiring of a new employe, in that order. When a position is thus filled it will be done by assignment bulletin in the same manner as is done when it is filled with an employe bidding on same in response to a bulletin. The assignment bulletin will show that such assignment is being made by

reason of no bids having been received and the employe so assigned if he does not already have seniority in that seniority district will establish seniority in the classification `embracing the position to which he is assigned dating from the date his pay starts on such position. This in no way affects the rights of the carrier or the employes insofar as filling temporary vacancies and filling vacancies pending expiration of bulletin rules.'

LEAVE OF ABSENCE; RETURN FROM LEAVE

OF ABSENCE OR ABSENCE ACCOUNT

SICKNESS:

Rule 5. ***

(d) Employes who are granted formal leaves as

provided herein and who do not report on or

before the first work day following the

termination of their leave of absence will

lose their seniority, except in case the,

employe furnishes satisfactory evidence that

he was un avoidably delayed. When return

ing absence from any cause such employe w'd

be to notify his employing officer not later

than the end of the work day prior to the

day he expects to go to work."

"Rule 8. Employes accepting a position, in the exercise of their seniority rights will do so without causing extra expense to the railroad."

The Carrier has defined its position as three (3) issues:

"(1) Does the employee holding seniority in a like classification on another seniority roster (Tie Gang) have to protect these seniority rights or forfeit same?

(2) Does the employee accepting the position voluntarily now entitle him to some sort of compensation?

(3) Has the Organization satisfied their burden of proof in showing that the Agreement was somehow violated

position when his seniority is still "usable" on the District, that employee would forfeit his seniority on the District Tie Gang Rosters. Therefore, according to the Carrier, the Claimant was not "forced" to change gangs but rather was "exercising his options" in accordance with Agreement rules.

The Carrier further submits that the Claimant was "the senior unassigned employee in that classification" in that the claimant had seniority in the classification of a Trackman on the District Tie Gang and, therefore, was assigned in accordance with the terms of Rule 11 (b).

The Carrier cites Rule 8 as quoted above relative to the expenses the Claimant has incurred as a result of "voluntarily" accepting the position with Gang 9162.

Finally, the Carrier asserts that the Organization "never substantiated a violation of the Agreement and therefore did not meet their burden of proof."

The Organization asserts that there are seven circumstances under which an employee may forfeit his seniority besides action under the Discipline Rule. These controlling Rules are 2(d), (g), (j) and 5 (d) as quoted above. The Organization maintains that none of these circumstances is comparable to those in which the Claimant found himself upon receipt of Carrier's correspondence of August 22,1989.

The Organization further points to Rule 11 (b) which "clearly and unambiguously" stipulates how positions are to be filled. According to the organization, the "essence" of the Carrier's contention that the Claimant was "unassigned" because the Claimant was not assigned to a District Tie Gang is "erroneous." According to the organization, the Carrier's interpretation would translate into the notion that the Claimant would be considered on furlough because his assignment to the Division Gang would not "count." The organization maintains that if the Parties had intended this restriction, "we would have so stated."

The Organization further asserts that the Carrier's reliance on Article 5 of the March 19,1981 Memorandum Agreement reflects a "strained and erroneous interpretation of the rule," According to the Organization, Article 5 does not imply that there is a requirement that an employee return to a Distr'.;ct Tie Gang position in the event that one becomes available after he moves into a Division position.

Finally, the Organization contends that the Claimant was "forced to abandon" his regularly assigned position by the

Carrier's "threat" to his seniority, and that Claimant did not "voluntarily make such a, choice." The Organization submits that Claimant was merely "obeying now and grieving later." Therefore, the organization asserts that the Claimant is entitled to be reimbursed for the expense incurred to him as a result of this forced transfer from Gang 4137 to Gang 9162.

The basic dispute in this issue centers upon the term "unassigned" in Rule 11 (b). The Carrier has asserted that because a position became available in the Claimant's District and he was the senior unassigned employee, it properly recalled the Claimant and that he "voluntarily" exercised his option in accordance with the Agreement provisions. Having made his choice, and "voluntarily" switching gangs, the Carrier then relies on Rule 8 with relation to the organization's demand for travel and expense reimbursement.

The organization submits that the Claimant was not "unassigned" in that he was regularly assigned to Gang 4137 having previously exhausted his District options. Therefore, the Claimant was "forced" to accept the position on Gang 9162 or face the loss of his seniority. Because the Claimant was forced rather than volunteering for the position, the organization asserts that Claimant should be reimbursed any expenses which were incurred by the Claimant.

A careful review of the Agreement provisions upon which the Parties relied, particularly Rule 11 (b), fails to support the premise that the Parties meant to use the term "unassigned" as the Carrier has construed it. Claimant was not unassigned or furloughed, but was, in fact, working regularly on a Division Gang position; having exhausted his District seniority options.

It is also apparent from the record before us, that Claimant followed the generally accepted labor/management maxim of "obeying now and grieving later." The Carrier's implication that Claimant "voluntarily" could have remained where he was and "taken his chances" is discredited by Carrier's own notice to Claimant of his reassignment. The coercive tone of Carrier's notice clearly removed any voluntarism from Claimant's decision to obey that notice.

Rule 8 clearly applies only to voluntary acceptance of a position, and not to a "forced" acceptance under the threat of loss of one's seniority~rights. Notwithstanding, the organization has failed to present a rationale for assessment of punitive damages.

Accordingly, the Carrier is directed to pay Claimant travel time and mileage twice a week for traveling between Gang No. 4137 and Gang No. 9162 at the rate stipulated in the Agreement from September 18, 1989, until such time as Claimant is returned to Gang No. 4137, or until Claimant would have been furloughed from Gang No. 4137, or until he voluntarily bid into another position, or until Claimant's position on Gang 4137 was filled by an employee senior to the Claimant.

A W A R D