Form 1 Award No. 41448The claim was handled in a timely manner on the property consistent with the parties' protocols for claim processing up to and including the Carrier's highest designated officer.
The Claimant maintains seniority as a System Equipment Operator (SEO); he is No. 4 on the SEO seniority roster, whereas the claimed-against employee is No. 19 on the SEO seniority roster.
On June 4, 2007, the Carrier posted Bulletin SWE 52.07 for an SEO to operate the winch car. The bulletin stated "Reason: New - work with Rail Train." Two days later (June 6) the Carrier cancelled Bulletin SWE 52.07.
Beginning June 19, 2007, the Carrier assigned the junior employee to perform the duties advertised in the cancelled bulletin. The junior employee dedicated 13 days over the course of 44 days operating the winch car on the rail distribution train.
On August 8, 200'7, the Claimant filed a claim for the hours worked by the junior SEO.
According to the Organization, the Claimant "has bid and been successfully awarded this position when the Carrier has stayed within compliance of the Agreement between the Parties. [Attached] Award Bulletin Numbers SWE 5.07 dated February 16, 2007 and SWE 31.07 dated April 26, 2007[.)"
The Organization contends that the Carrier violated Rule 3.13 by not giving preference to the senior qualified employee. Rule 3.13 preserves preference for the senior employee "pending advertisement and award." Instead, the Carrier assigned a junior employee and abrogated the Claimant's seniority.
With respect to the Carrier's reliance on Rule 17.1, the Organization asserts that the advertised position was not temporary, but permanent and arbitrarily canceled. "Claimant rightfully should have been offered the vacant position[.j" Rule 17.1 does authorize a temporary assignment to a different class of work within the employee's "range of ability," but the intent is to allow the Carrier flexibility in assigning employees to perform "incidental work" in connection with the employee's position. This "incidental work" consumed 13 days.
On January 28, 2008, the Carrier denied the appeal. In addition to reiterating arguments presented in its initial declination letter, the Carrier noted that Rule 3.6 does not apply because the junior employee "is a qualified [SEO] assigned to the distribution crew to perform material distribution work" on a temporary assignment consuming only Form 1 Award No. 41448
13 days over a the course of one and one-half months. Using the Organization's logic, the Carrier argues, it would be required to bulletin this position for nine days in June, abolish the position, bulletin it again for two days in July and two days in August and abolish the position after each bulletin.
Rule 17.1 (Temporary Assignments) and Rule 17.2 (Incidental Work) the Carrier argues, are distinct and separate. According to the Organization, Rule 17.1 was not intended for incidental work. The Carrier contends that the claimed work "was not incidental," but rather was a temporary assignment.
As a preliminary matter for the Board's review, the Carrier objects in its Submission to the claim presented by the Organization. The Carrier asserts that the initial claim filed by the Claimant ("position was not advertised as per the present agreement . . . depriving opportunity to bid this position, a job [Claimant] routinely bids and works") is different from the Organization's claim ("Carrier violated [the] Agreement when it failed to assign [the Claimant] to fill a temporary vacancy").
The Board's view is that the initial claim may have been awkwardly crafted by the Claimant, but the Carrier's declination letter demonstrates that the Carrier was on notice and sufficiently informed about the allegation that a junior employee was assigned to operate the winch car rather than a senior employee (the Claimant). The manner in which the Organization framed the claim is materially compliant with the initial claim. Thus, we find that the Board is not presented with two separate claims.
Having carefully reviewed the record evidence, the Board finds that the Carrier determines when to advertise a position, as well as when to cancel an advertised position consistent with the time frames prescribed in Rule 3.6 and Rule 3.10.
The Organization asserts that Rule 3 governs this situation, whereas the Carrier asserts that Rule 17 applied. Under Rule 3 or Rule 17, the Claimant is the senior, qualified employee on the SEO roster over the junior employee and is the senior qualified employee over the junior employee on the rail distribution train. Seniority is a stated, agreed-upon preference for filling any position, unless there is an expressed exception thereto in the Agreement.
The Claimant receives preference based on seniority for work involving the operation of the winch car on the rail distribution team. Documents in the record establish that the Claimant has bid for and has been awarded this position in the past; he was available for this temporary assignment. The Carrier did not extend seniority Form I Award No. 41448
preference to the Claimant. To justify its action, the Carrier asserts past practice and cites to Rule 17.1 (Temporary Assignment).
As for past practice, there is insufficient evidence in this record to establish past practice beyond the assertion and, in and of itself, the assertion is not of evidentiary value. Even if the past practice is established, it shows only that the Carrier used the rail distribution team in the past. The Claimant is senior on the rail distribution team.
As for Rule 17, the Carrier proffered several Third Division Awards as support for its position. Two Awards involve situations where the incumbent, senior employee was not available and a junior employee was assigned the work. (See, Third Division Awards 38734 and 38735.) In the instant case, the Claimant was the senior qualified employee and was available to perform the work. Award 37620 involves Rule 17.2 and incidental work. The Carrier states that Rule 17.2 is not applicable to the claim in this case. Suffice to say, the Awards submitted are problematic as a line of support for the Carrier.
In the final analysis, the Board finds that inasmuch as the Carrier extended preference to a junior employee over a qualified and available employee without an established past practice or expressly stated basis in the Agreement authorizing it to do so constituted a violation of Rule 17.1. Therefore, the claim is sustained and the requested relief is granted.
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.