The Carrier and Organization are parties to a 1996 National Agreement (the "Agreement") which has been in effect at all times relevant to this dispute, covering the Carrier's employees in the Maintenance of Way craft, including the Claimant.
At the time of the incident, the Claimant was regularly assigned to mobile Regional and System-Wide Gang TC-01 as a Group 3 Machine Operator on District Seven. He had held this assignment for more than 30 days. The Claimant has a seniority date of July 18, 1995. The gang consisted of 74 employees.
In a bulletin dated May 1, 1998, the Carrier advertised and the Claimant timely bid on a Section Foreman position headquartered at Table Rock, Nebraska. If the Claimant had been awarded the headquarters position, he would have left the gang.
The Agreement states that no more than 10% of a gang is allowed to bid off during a one-week period. The Carrier allowed seven of the gang's members to bid off during the week of May 10-16, 1998. All seven held greater seniority than the Claimant.'
The Carrier's bulletin cycle is twice per month, with job awards being made on the 15th and last day of the month. The bulletin for the headquarters Section Foreman position sought by the Claimant closed on Sunday, May 10, 1998. On Friday, May 15,
1998, the Carrier posted an Award Bulletin stating "No Bidders" for the Section Foreman position.
The Claimant remained on the System Gang at a lower pay rate than had he received the position on which he bid. He continued to collect the gang's travel allowance which would not have been available had he been awarded the Foreman's position. The Organization protested the failure and refusal of the Carrier to award the Claimant the position.
The Carrier argues that the Organization failed to meet its burden to prove that the Carrier violated the Agreement. It asserted that the ten percent limit was properly applied during the week when bids were considered and awarded. It contends that it followed its past practice of not rounding up to the nearest whole number when determining how many employees may bid off of a Region/System Gang during a week on the basis that to round up would allow more than ten percent of a gang to bid off during such period.
The Carrier contends that it considered bids of all employees electing to leave the gang and determined that the Claimant was not one of the seven most senior employees bidding from the gang during the week beginning Sunday, May 10, 1998. The Carrier further argues that, contrary to the Organization's allegations, it recognized the Claimant's seniority when it denied the Claimant's attempt to bid off of his gang. Employees senior to the Claimant were permitted to bid off, while the Claimant, who was junior in seniority, was not.
In rejecting the Organization's contention that the ten percent limit should be calculated and applied once each week, that is, on a weekly basis, the Carrier points to Article XVI, Section 3(b) of the Agreement, which states in part:
The Carrier asserts that it also followed its past practice of using Sunday as the first day of the week and using the day when a bulletin closes as the day when the Carrier determines whether an employee is entitled to bid off of the Region/System Gang to which he is assigned. Form 1 Award No. 40459
In arguing that it complied with all aspects of the Agreement, the Carrier cited on-property Third Division Award 36277. In that decision, the claimants included three bidders who were denied positions on which they had bid for outside of their gangs based on the ten percent limitation in Article XVI, Section 3(b) of the Agreement. Award 36277 held, in pertinent part:
The Carrier responds to the Organization's claim for damages on behalf of the Claimant by asserting that it is excessive and unproven. It contends that the Claimant was fully employed on the Region/System Gang that pays both a per diem and a travel allowance. Thus, the Carrier contends that the Claimant suffered no loss of earnings or allowances. It argues that any damages would be punitive for which the Agreement does not provide.
As to the Organization's claim for payment of the difference in rate between the Claimant's gang position and the Foreman position on which he bid, the Carrier asserts that the Organization failed to prove any violation. Consequently, any claimed loss of wages is moot. It further asserts that, even if the Claimant had been awarded the Form 1 Page 5
It asserts that the Claimant was the senior qualified applicant for the headquarters Section Foreman position and he should have been awarded the job.
The Organization cites the above-quoted on-property Third Division Award 36277 as well as Third Division Awards 12371, 11072, and 19758 for the propositions that (1) the Carrier is obligated to honor the provisions of the Agreement (2) it may not make unilateral assignments and (3) the purpose of job bidding Rules is to protect the rights of senior employees.
The Board concludes that the Organization failed to prove that the Carrier violated Article XVI, Section 3(b) or any other provision of the Agreement
The record establishes that the Carrier allowed ten percent (seven employees) of the Claimant's Region/System Gang to bid off during the relevant one-week period. The Claimant did not have sufficient seniority to be one of the seven employees allowed to leave the gang during the week of May 10, 1998. The clear and unambiguous language of Article XVI, Section 3(b) of the Agreement precludes more than ten percent of a gang to bid off during any week. To have allowed more than seven members to bid off at one time would have exceeded the contractual ten percent cap. The Organization failed to establish any contrary past practice or any history with respect to the intent of the Parties. Consequently, the claim will be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.