Form 1
AU
DIVISION
Award No. 31478
Docket No
96-3-93-3 -3 67
The Third Division consisted
addition Referee Robert . Hicks when award w rendered.
TIE TO U: (
STATEMENT OF C IM:
(Brotherhood of Maintenance of Way Employes
(Southern Pacific Transportation Company
( ((Eastern Lines)
1°(1)
The Agreement was violate when the Carrier
s Relief Foreman J. . Gutierrez, instead
of assinin furloughed Machine Operator . G.
Davis, to perform Maintenance of Way work
rating i crane picking
r sss between Alpine an as , Texas on
arch , 11, 2, , 1, 1, , 1992
(System File ®92106/ o -11 ) .
(2) saconsequence ohe violation in Part (1) above, Claimant.F. G. Davis shall
e allowed d sixty-four (64) hours' pay at his
machine operator's x'11 , two (2)
hours' pay at his time and one-half rate and
shall credited with eight (8) days
toward his qualifyinq days for vacation
purposes."
f
FINDINGS:
.
e Third of a Adjust , o
record an all the evidence, finds that:
The carrier or carriers and the employee or employees involved
this dispute are respectively carrier a employee in the
meaning of th Railway Labor c as approved ue 21, 193 .
This Division of the Adjustment Board has jurisdiction over
e dispute involved herein.
o s
The Organization argues that Carrier was.obligated to call
Claimant, recently o c operator,
to work the tie
machine lie of 'n o
o Award . 31478
Page 2 Docket No. 31338
96-3 -9 3 -3 ®367
Carrier's defense has been that it paid the Machine Operator's
rate to the Machine Operator during the period of the claim and
even paid the Foreman the Foreman's rate while operating the tie
machine, thus no Rule has been violated.
The Organization referred to various Rules that provide for
different seniority in different categories and contends the Rules
cited support its position.
The Board, in this instance, based solely upon the facts
established in the on-property handling, finds for the
Organization. It is fact that the Machine operator who was with
the Foreman who operated the tie machine is senior to Claimant, but
Claimant is senior to the Foreman as a Machine Operator and
Claimant could run the tie machine whereas the Machine Operator on
duty and under pay could not. Furthermore, Carrier has agreed the work classification and seniority Rules that clearly establis
such divisions. Nothing has been cited that permits the Carrier blur the seniority divisions and/or work classifications.
The Board agrees with Third Division Award 27974 which,
although it involves overtime, is on
point with
the Organization's
case. The pertinent portion of Award 27974 is quoted, as follows:
"... The fact that the machine operator, previously held
trackman rights does not entitle i o the overtime
rights in the seniorit class of a prior position.
(Third Division Award 25128). Because of Carrier's
violation, Claimant lost the opportunity to perform work
and is entitled to a monetary claim. The claim i
therefore sustained as requested."
This Board also adopts the last line of the aforequoted Award.
Claimant lost the opportunity to
work, he was ready to work but he
was not given the opportunity.
Claimant is to be paid the wages
lost when he was not recalled for the Machine operator's vacancy
and there certainly was a vacancy (not requiring e
the working Machine operator could not operate the tie machine.
There is also a request that Claimant be credited for vacatio
purposes, the eight days lost when not utilized in this instance.
This was a matter raised and discussed on the property the organization citing question ananswer 2 ) of the July 20,
1942 Interpretation and Application of the Vacation Agreemen o
December 17, 1941. Those interpretations have withstood t e test
of time. Besides, Carrier was unable o refute a charge that
interpretation
cited supported the orga izatio 'ostio .
Form 1 Award No. 31478
® ®3133
--33 67
Claimant i therefor to credited with the eight days for
whatever good it may y do him.
AA
Claim sustained.
ORDER
This Board, after consideration o tit tiff
above, here orders that an award favorable to the Claimant(s) be
made. The Carrier is ordered to make the Award effective on or
efor following the postmark date the Award is transmitted
t tie
NATIONAL RAILROAD ADJUSTMENT BOARD
r Division
e Chicago, Illinois, this