The Claimant and D. Dilno are Machine Operators holding ballast regulator positions on Smoothing Unit #3. The Claimant was senior to Dilno. On the dates set forth in the claim, the Carrier assigned Dilno overtime work moving the ballast regulator from Richmond to Waterford, Michigan, on the Holly Subdivision where Dilno worked on various tracks brooming and regulating switches within the subdivision and then returned to Richmond. The claim followed asserting that the Claimant was entitled to perform the overtime work given to Dilno.
The September 27,1971 Side Letter to the January 1, 1966 Agreement cited by the Organization provides, in pertinent part:
The Claimant, who was available, was senior to Dilno on this gang. Under this provision of the September 27, 1971 Side Letter, the Claimant was entitled to the work over the junior employee Dilno.
The Carrier asserts that Dilno was assigned the work over the Claimant because the Claimant ". . . was not qualified to perform the duties required on this overtime" and the Claimant:
Further, according to the Carrier, Dilno ". . . ordinarily and customarily performs the finish work on the Surfacing Unit #13, which includes the brooming." The Claimant states that after he learned that Dilno was assigned the work he spoke with Foreman Mata who told the Claimant that Dilno was selected for the work because he ". . . was taking the most experienced operator . . . ."
However, the Claimant was qualified and assigned as a ballast regulator operator on this smoothing unit. If the Carrier had any problems with the Claimant's work, one would expect that it would have taken steps to disqualify him as a ballast regulator operator on this gang. There is no evidence that was done.
The fact that the Claimant stated to his Foreman that "I've never done them before," followed by an unsure shrug of his shoulders at most means that the Claimant did not previously perform that specific work. It does not mean that the Claimant - a qualified Ballast Regulator Operator assigned to this smoothing unit - was unqualified to do the work. It may be that Dilno was better and even more experienced at the particular brooming work. However, the relevant Rule does not permit assignment to the "most qualified" employee. Under the Side Letter of Agreement, the work was to be assigned ". . . with the employes in the gang being called in the order of their seniority, if available." The Claimant was a qualified Ballast Regulator Operator on the gang; he was senior to Dilno; he was available; and, by Rule, he should have been given the work.
We do not view the Organization's additional reference to Rule 4(a) on the property as an abandonment of its reliance upon the September 27, 1971 Side Letter. However, even if the claim is considered under Rule 4(a) (which in agreement, with the Carrier, we do not believe is appropriate because that Rule addresses the bulletining of "[n]ew positions and permanent positions" and this is an overtime assignment), the Organization would still prevail. That Rule requires positions to be ". . . filled by the senior qualified applicant." The Claimant was a qualified Ballast Regulator Operator and he was senior to Dilno. Again, the Claimant should have been given the overtime work assigned to Dilno.
The claim will be sustained. The Claimant shall be compensated for the lost overtime work opportunity for the number of hours Dilno performed the disputed work. Form 1 Award No. 35302
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) 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.