Form 1
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33209
Docket No. MW-32431
99-3-95-3-328
The Third Division consisted of the regular members and in addition Referee
John H. Abernathy when award was rendered.
(Brotherhood of Maintenance of Way Employes
(Terminal Railroad Association of St. Louis
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier advertised a track
foreman's position within Bulletin No. 4 dated March 31, 1994 and
instead
of
assigning the senior employe, Mr. C. Wicks, who
submitted a bid for the position it assigned Mr. J. J. Wilson who did
not request or submit a bid for said position (System File 1994-29/
013-293-15).
(2) As a consequence
of
the above-stated violation:
(a) Mr. C. Wicks shall be assigned to the track foreman's
position involved here with seniority and he shall be
compensated for all wage loss suffered (the difference
in pay he received and that he would have received
had the Carrier properly awarded him the position)
beginning April 12, 1994 and continuing until he is
assigned to the track foreman's position in question,
and
(b) Mr. J. J. Wilson's name and foreman's seniority shall
be reinstated in its proper place within the
appropriate seniority rosters) as listed prior to the
date of the incident in question."
Form 1
Page 2
FINDINGS:
Award No. 33209
Docket No. MW-32431
99-3-95-3-328
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
.r
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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
Parties to said dispute were given due notice of hearing thereon.
Recent Third Division Award 32398 between the same parties involving the same
issue is enlightening. In that case the Carrier also issued a bulletin for Track Foreman
position, denied that position to the senior employee who bid on the position and forced
assigned employee J. J. Wilson, who held Track Foreman Seniority but did not bid, into
the Track Foreman Position. There, as here, the Carrier maintained that Rule 8 and
the July 1, 1989 Memorandum of Agreement provided authority for such action.
The Board in that case stated:
"... that the Carrier's position lacks merit. Neither the Agreement
nor Memorandum contains clear language permitting force assignment
under the conditions of this claim. The position was bulletined and could
be filled by applicants first who held seniority in rank and then by lower
ranks having appropriate ability and seniority. The Claimant's rights
were violated when the Carrier force assigned an employee who did not
bid the position. The 1994 Seniority Roster indicates that Claimant was
awarded Foreman Seniority on July 22, 1993 and the Board finds that the
claim is payable until such date."
The Board finds that Award 32398 disposes this matter, and that the remedy
requested in the present claim should be granted.
Form 1
Page 3
Award No. 33209
Docket No. MW-32431
99-3-95-3-328
AWARD
Claim sustained.
ORDER
This Board, after consideration ofthe dispute identified above, hereby orders that
an award favorable to the Claimants) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of April 1999.