This case involves a claim by the Organization that the Carrier violated Rules 1 and 3 of the Agreement when it assigned a Track Foreman on CAT Gang SM-610 to perform Trackman's work while the Claimant, a Trackman, remained furloughed. In support of the claim, the Organization presented the Foreman's unrebutted, signed statement acknowledging that he performed the disputed work throughout the claim period.
Under Rules 1 and 3, the Organization argues, seniority is established and maintained separately for Trackmen and for Foremen. The Organization, accordingly, asserts that the assignment of work belonging to employees holding seniority in the Track Subdepartment to an employee who does not hold such seniority violated the Agreement. The Organization disputes the Carrier's claim that Rule 19 and paragraph 4 of the Scope Rule permitted the disputed assignment.' It argues that the Carrier's expansive reading of those provisions would destroy the Agreement's seniority protections.
The Carrier, on the other hand, asserts that the record evidence documents only incidental Trackman activity by the Foreman. According to the Carrier, such work, particularly because it was temporary, was permitted under Rule 19 and the fourth paragraph of the Scope Rule. The Carrier insists that the Rules, which are meant to
give it flexibility in the assignment of work in order to bring greater efficiency to its operations, were not violated.
According to the Carrier, work assignments under Rule 19 and paragraph 4 of the Scope Rule are not exclusive to any single classification, and employees in one classification may perform the work of another. So, too, Rule 1 expressly provides that the Track Foreman's job is to "[dlirect and work with employees assigned under his jurisdiction." (Emphasis supplied). Relying on these provisions, the Carrier insists that the Agreement expressly allowed the Foreman to perform Trackman work. There is no requirement, according to the Carrier, that a furloughed employee be recalled to do work that a Foreman already on duty is available and permitted to perform as an incidental part of his job.
In any case, the Carrier argues, the claim must be dismissed because the case presented to the Board is different from the claim handled on the property. Further, according to the Carrier, because the claim was not filed within 60 days of the first 13 alleged violations, those alleged violations may not be considered by the Board. With respect to remedy, the Carrier claims that because the Claimant was furloughed, he was not available for service, suffered no loss and is not entitled to compensation.
Based on its review of the record evidence, the Board finds that the Carrier substituted a Foreman for a Trackman on Gang CAT SM-610 during the period April 2 to June 20, 1991, thereby violating Rules 1 and 3 of the Agreement. The evidence simply does not support the Carrier's assertion that the Trackman work performed by the Foreman was incidental to his regular duties. Rather, evidence demonstrates that the Trackman work performed by the Foreman was a regular and substantial part of his work assignment during the period covered by the claim. We do not believe that Rule 19 or paragraph 4 of the Scope Rule were intended to permit the kind and degree of work reassignment which occurred in this case.
We do not agree with the Carrier that the claim presented to the Board is different from the one handled on the property. Nor are we persuaded, under these facts, that a furloughed Trackman is precluded from obtaining the make whole remedy sought by the claim. However, any violations which are alleged to have occurred more than 60 days before June 26,1991, cannot be considered by the Board, and are denied. Form 1 Page 4