Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 42790 Docket No. MW-43452 17-3-NRAB-00003-160181
The Third Division consisted of the regular members and in addition Referee Barry E. Simon when award was rendered.
(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference
PARTIES TO DISPUTE: (
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to release Mr. J.
Wilder to the assistant foreman flagging position on Gang 5FNC and when the Carrier failed to allow him to perform his scheduled tour of duty starting May 21, 2014 and continuing (System File B17608814/2014172903 CSX).
(2) As a consequence of the violation referred to in Part (1) above, Claimant
J. Wilder shall '. . . be paid twenty (20) hours at his overtime rate of pay for each week of this violation up to and until it is corrected. ***'"
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
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 Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
On May 6, 2014 the Carrier posted a bulletin advertising a track assistant
foreman flagging vacancy on Force 5FNC. This was advertised as a permanent
vacancy. Claimant bid on this vacancy and, by bulletin dated May 12, 2014, was
assigned to it, effective May
Award No. 42790 Docket No. MW-43452 17-3-NRAB-00003-160181 19, 2014. Claimant, however, was never released from his prior position. The Organization asserts other employees who were either junior to Claimant, or who had not been assigned to flagging positions, performed the work of the position to which Claimant had been assigned. It asks, therefore, for the wages Claimant would have earned had he been allowed to work his assigned position.
The Carrier denies that anyone ever worked the position that had been awarded to Claimant. It further notes that the position was formally abolished effective September 2, 2014, by bulletin dated August 28, 2014. It argues, therefore, that Claimant is not entitled to any additional compensation.
In our review of the record before us, we do not find evidence of any employees performing the work of the position to which Claimant had been assigned. We cannot, therefore, find that Claimant lost work as a result of being held on his prior assignment. The Carrier was, however, in violation of Rule 3, Section 3(d), which requires the Carrier to transfer the employee to the awarded position within five days of the assignment. On May 19, 2014, Claimant was constructively the incumbent of the flagging position covered by the bulletin. According to the Organization, he was required to work a lower rated job. We hold that he should have been compensated at the rate of the assistant foreman flagging position for all work he performed, in accordance with Rule 19 of the Agreement, until that position was abolished. We will order the Carrier to make such an adjustment.
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 transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division
Dated at Chicago, Illinois, this 28th day of November 2017.