PARTIES ) Transportation-Communications International
 TO THE ) Union
 DISPUTE ) and
 The Atchison, Topeka and Santa Fe Railway Company
 QUESTIONS 1. Did the Carrier violate the provisions of the
 AT ISSUE: 7, 1965 Mediation Agreement, as amended, when it
 refused to consider S. T. Davis, a protected
 employe pursuant to Section 1(d), Article I, based
 upon attaining the requisite three (3) years of
 continuous employment relationship and being
 recalled and assigned to a regular position?
 2. Shall the Carrier be required to compensate S. T.
 Davis for all loss of compensation commencing
 November 1, 1985, as a result of failing to
 recognize S. T. Davis as a protected employe?
 OPINION
 OF THE BOARD: Claimant, who established a May 8, 1979 seniority
 date on the Illinois Division Station Department
 Seniority District, did not hold a regular position on January 1,
 1980. Thus, the question of whether or not Claimant thereafter
 attained protected status is controlled by Article I, Section 1(d)
 which reads:




Claimant was apparently in off-in-force-reduction status for several years. Claimant accumulated three years of continuous service with the Carrier on May 8, 1982 meeting the threshold requirement in Article I, Section 1(d). Claimant was eligible to became a protected employee as of June 1, 1982. See Award No. 457. Claimant did not become a protected employee on his earliest eligibility date inasmuch as he was not regularly assigned on June 1, 1982.

The Carrier called Claimant to protect a short vacancy
 on October 28, 1985. The vacant job was Head Crew Clerk Relief
 Position No. 4, which the Carrier had advertised as a permanent
 position on October 22, 1985. On October 29, 1985, an Interchange
 Clerk notified Claimant that he had been recalled from off-in
 force-reduction status and assigned to the job he was protecting law
 as a short vacancy. Claimant responded and assumed the duties of
 the job at the start of the shift later in the day. The next day,
 a Superintendent's bulletin confirmed Claimant's assignment to the
 permanent position. However, about three hours later, the
 Superintendent rescinded the bulletin assigning Claimant to Head
 Crew Clerk Relief Position No. 4 because the Carrier had
 inadvertently overlooked an employee with more seniority than
 Claimant. Claimant reverted back to off-in-force-reduction status
 but continued to work the Head Clerk Relief position, as a short
 vacancy, until November 1, 1985. On November 1, 1985, a different
 worker, with greater seniority than the person assigned to the job
 in lieu of Claimant, displaced onto the Head Crew Clerk Relief
 Position.

                          _ 2 _

                                        AWARD NO. 464

                                        CASE NO. CL-154-W


Beginning with November, 1985, Claimant filed an application for protective benefits under the February 7, 1965 Mediation Agreement, as amended.

To reiterate our earlier discussion, Claimant did not become a protected employee on the first day of the month immediately following the month in which he accrued three years of continuous service because he was not regularly assigned on that date. Thus, whether Claimant, who was already eligible to become a protected employee, actually attained protected status subsequent to June 1, 1982 is governed by the final clause of Article I, Section 1(d) which states: "...in which event they will become protected employes on the first of the month immediately following the month when recalled to service and assigned to a regular position in accordance with existing rules of the Clerks' Acireement." (Emphasis added.) Thus, an employee who is eligible to become a protected employee actually achieves protected status on the first of the month following the month in which he is assigned a regular position in compliance with existing rules in the working Agreement (even if he no longer occupies a regular position on the first of the month after being recalled for a regular job).

While Claimant fleetingly occupied a regular position in late October, 1985, his assignment to the position was contrary to existing rules of the Clerks' Agreement. Put simply, the Carrier mistakenly awarded Claimant a permanent assignment. Since there is no evidence Claimant filed a grievance or otherwise challenged the rescission of the bulletin granting him the job,


                          - 3 -

                                        AWARD N0. 464

                                        CASE N0. CL-154-W '


                                                        Claimant obviously realized that he lacked sufficient seniority to r/ be awarded the position. Thus, he had not been assigned a regular position in compliance with existing rules. It follows that, though eligible, Claimant had not yet attained protective status as of November 1, 1985.


                          AWARD


          1. The Answer to Question No. 1 is No.


          2. Question No. 2 is moot.


John B. LaRocco
 Neutral Member
 Dated: November 7, 1988

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