BEFORE PUBLIC LAW BOARD N0. 1837

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES and

NORFOLK § WESTERN RAILWAY COMPANY

Case No. 60 Dispute - Claim of the System committee that:

1. The Carrier .,iolated the Agreement when it assigned Wabash Agreement employes R. Odle, S. Thompson, M. Lockhart, L. Johnson, J. Bradburn and J. Barr to operate brush cutters on the Cloverleaf District (which is Nickel Plate Agreement territory) beginning September 28, 1987 (File MW-MUN-87-27)

2. As a consequence of the aforesaid violation, Nickel Plate Agreement Brush Cutter Operations R.A. Hicks, Jr., O.D. Powell, Jr., J.D. Carer, F.E. McFarling, J.L. Crossland and J.W. Hall shall each be allowed pay:

"for al; straight time and overtime hours worked by the employes covered under Scope of the Wabash Agreement beginning September 28, 1987, up to the date the Wabash employes were released to return to their territory. We further request that R.A. Hicks, ;r. and J.D. Carter be placed on the Brush Cutter Ooerator's Seniority roster." Findings: Claimants were employed by Carrier and had all established and held seniority in their respective classes. Beginning on September 28, 1987, the Carrier assigned six employes who had established and held seniority on the former Wabash territory but held no seniority whatsoever under =he Nickel Plate Agreement, to operate brush cutters on the Cloverleaf District. The organization asserts that Claimants were fully qualified and readily available to perform the work in question and that Carrier deprived Claimants of the cgportunity to perform work to which they were entitled pursuant to their seniority under the Agreement. The claim was denied and has resulted in the dispute being placed before this Board.

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The claim was denied and has resulted in =he dispute being placed
before this-Board.
The Carrier contends that the Organization has failed to meet its
burden of proof that a violation occurred. In addition, the carrier
argues that the organization's claim is excessive and constitutes a
penalty.
This Board has thoroughly reviewed tae Record in this case and we
find that the Organization has met its burden of proof that the
claimants had established and held the appropriate seniority for the
assignments in question and that the carrier wrongfully assigned 'five
employes who held seniority under the W & LB Agreement, but no
seniority under the Nickel ?late Agreement to perform the track work
in Cleveland, Ohio.
The agreement clearly states in Rule I that:
"seniority will be restricted to the seniority districts, as hereinafter provided, on which seniority has been established." The Record reveals that the claimants were fully qualified and available to perform the work. Although the carrier contests their availability, contending that they were working on assignments elsewhere, this Board finds that since those assignments had been made by the Carrier the claimants are still to be considered available. As the Third Division stated in Award 13832:

"The fact is that Claimants were working where Carrier has assigned them, hence were not only available but Carrier was then availing itself of them. If they were not available at the time and place where the extra work was to be done, i_ was because carrier chose not to assign them there." (See, also Third Division Awards 19324 and 25964). With respect to the carrier's argument that granting the claim would be considered a penalty or somehow excessive, this Board states

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few D toa - 183 that in numerous awards the Divisions and various Boards have held that awarding the pay for rule violations of this kind is appropriate since the Claimants were, in essence, denied the work. Award

Claim sustained.

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