PARTIES Brotherhood of Maintenance of Way Em~;loyes
 _TO
 DIZ;YUTL and

STAT?:.:3'i%'T 1. That the Carrier improperly and in violation of the Parties`
 OF CLAI:·?: Agreement, effective January 1, 1973, deprived Section Foreman
 D. C. Garcia of his seniority rights as Section Foreman on Play
 13, 1977.
 2. That D. C. Garcia shall be reinstated to his former position as
 Section Foreman with his seniority date of February 2, 1976 re
 stored and be compensated for the difference in earnings between
 that of Section Foreman and Section Laborer subsequent to flay
 13, 1977.

 FINDINGS: On I-lay 13, 1977, Grievant D. C. Garcia was notified by the Carrier
 that he had forfeited his seniority in the class of Track Foreman
 (with seniority date of February 2, 1976) and that his name was being reaoved from
 Roster 40080, Group 8. According to the Carrier, on April 25, 1977 Grievant had
 elected to return to work as Sectionman following sick leave of absence from pre
 vious Section Foreman position at Blackrock, Nevada, and elected to work as Section
 man despite being instructed that he could displace junior relief foreman R. 0. Sosa
 at Tintic effective April 25, 1977. Citing Rule 22, Retention of Seniority, of the
 Schedule Agreement, the Carrier found thut Grievant's failure to exercise his sen
 iority resulted in forfeiture of his seniority.



The logic and compulsion of Rule 22 are clear and inescapable. The Organization and the Carrier toCether negotiated their Agreement and they must be jointly responsible for the application and interpretation of the Agreement as negotiated. The Referee is without authority to modify the Agreement of the Parties, and he must strive to avoid the havoc which would result from failure to give effect to the Agreement.

                                            Case 140- 3

                                            Page 2


Rule 22, of course, must be given a reasonable interpretation in keeping with the manifest purpose and intention of the Parties. The words, "An employe who accept;;", obviously contemplates an employe who elects, opts for, chooses, or otherwise consents to, "a lower paid position in another seniority group ....". The element of free choice and the absence of command or compulsion in denial of free choice are necessary conditions defining "An employe who accepts" in Rule 22.

 According to Grievant, on May 2, 1977, in response to Assistant Chairman Joseph V. Larsen's qucstion why he was not working as a foreman, he said, "there is no place to go, Sosa is working as a Gandie and so am I." (Carrier's Ex1:bit B). The record shows that Mr. Sosa ..-:age out a request for leave of absence from the Tintic position with date of kpril 26, 197'7 (Carrier's Exhibit J), and although the fact-- establish that Cdr. Sosa was still employed at Tin.: .c throuwh April 28, 1977 (Carrier's Exhibit J) and therefore subject to displacement by Grievant, there exists a factual basis for Grievant's alleged understanding that Mr. Sosa was not subject to displacement on April 25, but was "working os a Gat:die" at the time. Chief Engineer R. M. Drown's letter of April 10, 1978 (Carrier's Exhibit J), in next to final paragraph, page 3, observes, in part, "In any event, it appears this entire dispute has arisen due either to a misunderstanding on Fir. Garcia's part or an insufficient investigation ....". The evidence of record supports the view that Mr. Garcia was the victim of misunderstanding about displacement opportunity, although it must be stated that he was not without some fault in such misunderstanding.

 In letter of December 20, 1977 (Carrier's Exhibit "I"), pane 2, Chief Engineer R. Dt. Brown enumerates five positions in addition to Mr. Sosa's on which Grievant might have displaced: Section 4107, 4281, 4141, 4155, 4165. Failure of Grievant to displace on any one of these positions occupied by a junior would be fatal to his grievance in this case, assuming, of course, that he was informed of his displacement rights to such positions under the Agreement. The Organization and Grievant have alleged that "Claimant Garcia advised Representative that he had not received bids on any of the positicns hold by junior employes, which resulted in Mr. I,arsen directing a verbal inquiry to the Division Cffices as to why positions were not beinr bulletined and assignments made in accordance i<ith Rule 20 of the Agreement" (Employees' Submission, p. 3). Although the Carrier was confronted with the- allegations that Grievant was not informed of the enumerated vacancies, and even though' such allegations were discussed in Conference, at no time in any of the extensive correspondence in this matter does the Carrier expressly state that Grievant was informed of the enumerated vacancies or any one of them, although "there is no doubt that claimant was properly advised that he had to bump a foreman, and yet he failed to do so." (Carrier's Exhibit "3", page 3). The evidence of record fails to show that Grievant was informed of his displacement rights to the enumerated positions.
                                            p~ zz.~7

                                            Award No. 2

                                            Case No. 3

                                            Page 3


                  A 1-11 A R D


Grievant D. C.·Garcia shall be restored Section Foreman seniority date of February 2, 19?6.

 The claim of D. C. Garcia that he be compensated for the difference in earnings between that of Section Foreman and Section laborer subsequent to May 13, 1977 is denied.

                  PUBLIC LAW BOARD N0. 226'7


                JOSEPH LAZAR, Chairman and Neutral Member


r.~.y i't
 S. E. FLEMING, Employe Membbr E. R. MIYERS, Car er Member

 DATED: 2-28-79