:-;TIES ) The Denver and Rio Grande i~ester:7 Railroad Company
 TO THE ) and
 DISPUTE ) Transportation-Communication Employees Union

 QUESTIONS
 AT ISSUE: 1. To avoid loss of protection or any part
 thereof under Article IV, is a displaced
 protected employee obligated to change his
 place of residence to obtain a higher rated
 position when a lower rated position is
 available to him not requiring a change in















OPINION
 OF BOARD: On July 15, 1965, Carrier abolished its relay office
As a result of the change, Claimant's position as Manager was abolished. According to Carrier, he could have bid a Manager's position in Denver but failed to exercise his seniority to obtain it.
                                    .>

                                    Case No. TCU-32-W


Z~ccordinq to Article IV, Section 4, of the February
 7 :_ _,~-ment, no loss .. in com:ner.sation is imposed upon a protected
 e-~-;'c·-:. : vriio "fails to cx, C, rr,a.se his seniority rights to secure
 aiiu_:z~:r availanlc posiuicn" ..-r a chlange in residence is requirea,
 ~_.-.:c··a 1 c; ,fines been t.:. .: o - -.-.c Denver job.

 'r::. highe:a--pr._~.::c~ job established at Salida was that of gent. Claimant dial not bid on this .job and would not have oi;tain~d it if he had, since it went to an employee ser-for to him. Carrier contends that under Article IV, Section 4, he must be treated as occupying the Agent's position, since he failed to bid on it.

 The import of Article IV, Section 4, is that the compensation guarantee is affected when an individual could have obtained but failed to obtain a position, not when it was actually unobtainable had tie placed a bid. That Section provides a penalty for failing to exercise seniority to secure a position. Going through the motions is not required. Carrier's view would necessitate exercises in futility, with employees bidding for jobs which are destined for others senior to them.

 Certainly if a junior employee emerges with the position, Article IV, Section 4, applies, and the senior employee who failed to bid is thereafter treated as occupying that position. But the failure to place a bid, which is known to be fruitless, does not affect a protected employee's rights to his guaranteed compensation.

 At the time of the change in 1965 Claimant also could have bid--and would then have obtained--the Relief Telegrapher's position at Salida. Instead he bid and obtained a lower-paying First Telegrapher position. The Organization acknowledges that thereafter he must be treated as occupying the higher of these two, since he elected to decline a position he could have had. Consequently, at thi:~ point Carrier was obligated to pay Claimant the difference between his protected rate as manager and the rate of the Relief position he bypassed.

 On March 12, 1967, the position of Agent at Salida was vacated. Claimant could have bid and obtained this position in the exercise of his seniority, and no change in residence was

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                                    iY7A,7D NO.

                                    Case No. TCU-32-11


:^quir-ed. lie did i:ot do so and a junior employee secured the
 ~;eb. 1'ae organ iz;i~:iazi contends that the requirements of
 ..rticlo
 ~ IV, Sactior :?., sho-:.1d not :~.-~ applied to Claimant at ctlis ,)o;.nt. It zis;:r is that:. the h:;rcement does not require
 c.T; =?LipLU`yC:;=', to , ~.!a.il aY. t again ordc r to obtain hiRher-
 ..-a·i.rr.. t:Q:i~t~C::r .. ..'T:r?f?r .,r gues `.''.;`1' there ·.y c,5 precisely
 :.':?c.i d.n in tcnt %:ai,ft:'.s'.`.cd ,·.`'! Antic i.^ .lV, Section 4; if
 _-`·~Lo·. _. mere to _._ g»r~.rtndteed a .~_`e of pay they had a
 concomitant obligation to obtain the highest-paying positions
 availaoie 'co tiiem ratner "Viizin sit bz;ck and coliect the dif
 ference between a low-paying job and their guarantees.

 In this case it is not even necessary to decide whether employees must make "bid after bid" for higher-paying positions. The fact is that Claimant had not exercised seniority to obtain a position carrying "a rate of pay and compensation exceeding those of the position he elects to retain." Nothing in Article IV, Section 4, purports to give protected employees the right to "declination after declination" of higher-paying positions while they retain a still higher guaranteed rate of compensation.

 Not even once did Claimant seek to narrow the gap between the rate of the relief job he declined in 1965 and the Manager's rate at which he was protected. Thus without regard to any obligation. to plac~ "bid after bid," Claimant certainly must be treated as occupying the position of Agent from March 12, 1967 on. He could have obtained that position by exercise of seniority, and he should have done so in accordance with Article IV, Section 4.

                        A W A R D


              The answer to Question No. 1 is No.


              The answer to Question No. 2 is Yes, for the period between July 15, 1965, and March 12, 1967 only.


                          Milton Friedman

                          Neutral Member


Dated: July 9, 1971
        Washington, D. C.


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