Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38203
Docket No. MW-37740
07-3-03-3-99
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it held Machine
Operator T. J. McConnell as a section laborer at Carrington,
North Dakota and from his assigned (per Bulletin No. 227A)
machine operator position on Production Crew No. 3 beginning
October 31, 2001 and continuing through December 6, 2001
(System File RI. 702/8-00495-005).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant T. J. McConnell shall now be compensated for the
difference in the straight time rate of pay between the machine
operator rate of pay and the section laborer rate of pay for the
total of two hundred twenty-eight (228) straight time hours
from October 31, 2001 through December 6, 2001 and he shall
be compensated ffor all overtime hours worked by the employe
on his assigned machine operator position during said period at
the respective machine operator's time and one-half rate of
pay."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 38203
D....,. 1
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Docket 1N0. 1V1 W-3 7 740
07-3-03-3-99
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 Adiustment Board has inricdictinn
over the
dimntP
involved herein.
Parties to said dispute were given due notice of hearing thereon.
At the time this claim arose, the Claimant held seniority in the Roadway
Equipment Sub-department Group 4 Rank A as of May 1, 1997. The Claimant
applied for and was awarded the higher-paying position of Group 4 Rank A
Machine Operator on Production Crew 3, which had been bulletined on October 10,
2001. However, the Carrier retained the Claimant in his prior position until
Production 3 Crew was abolished on December 6, 2001.
The Organization fled the above claim on December 21, 2001. It alleged that
the Carrier had wrongfully retained the Claimant on his former (lower paying)
position longer than the 20 days allowed under the provision of Rule 10(h) of the
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"An employee making application for and who is assigned to a
bulletined position must take the position within twenty (20)
calendar days from the date of assignment, unless he is prevented
from doing so because of illness or other reasonable cause.
During the twenty (20) calendar day period referenced above, an
employe assigned to a bulletined position who requests to be released
from his former assignment to take such a position may be held to
perform temporary relief on his former assignment in the event no
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protect the former assignment, the employe must be permitted to
take the new assignment.
An employe who fails to take a position to which assigned by bulletin
will forfeit all rights to such position and the position will be
rebulletined. The employe will be considered furloughed, and will
Form 1 Award No. 38203
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07-3-03-3-99
be required to file his name and address per Rule 13. (Amended
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The claim was denied on February 12, 2002. The Carrier contended that it
had not violated the Agreement, because no qualified relief was available to fill the
Claimant's former position. The Carrier also insisted that there was no basis upon
which to grant the Claimant the requested travel reimbursement, because he would
have incurred travel costs in his new position as well, some of which might have
been greater than those he was exnerienrinu
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appealed on April 12, 2002 and was subsequently progressed up to and including
conference on the property.
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that
the
Carrier exceeded its prerogative to hold
the Claimant on his former position for 20 days, and that he is entitled to the higher
wage he would have earned between October 31 and December 6, 2001, when the
crew was abolished. The Carrier counters that the Organization has not shown that
any relief was available and insists that it was, therefore, within its rights to retain
the Claimant on his original position.
The Carrier's position ignores the inherent time limit spelled
alit in the
second paragraph of Rule 10(h). The Carrier may hold a successful bidder on his
former position only 20 calendar days from the date of his assignment. The only
exception is if the successful bidder has not asked to be released from his former
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did, in fact, indicate that he would take the higher pay position "once he was
released from his former position." Thus, the Carrier's latitude to retain the
Claimant on his old position was limited to the contractual 20 calendar days. As the
Board commented in 'Third Division Award 35437:
".
. . Rule 10(h) rather clearly limits the permissible length of the
holdover to the 20 calendar day period specified. It is not an
indefinite right. We must find, therefore, that Carrier did violate
the Agreement when it refused to release Claimant after 20 calendar
days . . . ."
We note that the original claim also contended that the Claimant was entitled
to travel reimbursement for the period he was erroneously held on his former
Form I Award No. 38203
rage 4 Docket No. 1ViW-37740
07-3-03-3-99
position. The present record lends no support to that portion of the Organization's
claim.
~ Baseyd on the foregoing the B~oard find~s that the Claimant is entitled to the
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31 until it was abolished on December 6, 2001, and the position on which he was
retained. He should thus be made whole for the difference in earnings for that
period of time by means of a joint review of the Carrier's records.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 18th day of May 2007.