PARTIES Brotherhood of Maintenance of Way Employees
 TO
                              A)IkI

DISPUTE Atchison, Topeka anti Santa Fe Railway Company
 STATEMENT "1. Claim of the System Committee or the Brother
 OF CLAIM hood that the Agreement was violated when the
 position of Misc,:llaneous Machine Operator
 (Pittsburgh Section ) has advertised by '
 . bulletin on January 3. 1980 was awarded to
 an applicant junior to Trdckman D. R. Lopez
 (System File 1L)0-1.3D3-811/11-1G0-300-47).
 2. Claimant D. R. f,opez shall be allowed the
 difference between what he earned as a
 Trackman and what he should have earned as
 a miscellaneous Machine Operator beginning
 February 11. 1'180 and continuing until the
 Claimant is assigned to the aforesaid position."

 FINDINGS
 Upon the whole record, after hearing, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.

 Claimant herein was employed by Carrier in 1955 and thus had some 26 years of seniority as of the events involved in this dispute. The employee assigned to the position in this dispute Mr. Pinkney-had 10 years of seniority in the same classification as a Trackman. The record indicates that on January 3, 19F30, a new position of Miscellaneous Machine Operator was established on Carrier's Pittsburqh Section- As t-hA
 . ~57/-a-~ y
 _2-

 most senior employee qualified to perform the-position, claimant was assigned temporarily to fill the job pending bulletining the assignment on a permanent basis. Position was bulletined from January 3, 1980, until January 14, 1980, and Claimant and Mr. Pinkney applied for the position in question. Carrier assigned Mr. Pinkney to the position thus triggering the dispute herein.

 The record indicates that Claimant f,opez had worked the Miscellaneous - Machine operator position from January 3rd to January 26, 1980, at which time Mr. Pinkney took over the position.

 Article II, Section 4-a-1 of the Agreement provides as follows:

              "Operators of miscellaneous roadway machines, including such firemen and helpers as may be assigned, not listed in Groups 5 and 7, Section 2 of this Article IT, will be selected from the ranks of the senior available qualified main-

              tenance of way and l3. & D. employees on the __

              operating division, who have written applications

              for such service on file with the Superintendent,

              irrespective of group or class in which they hold

              seniority under this Agreement. Employees so

              used will not establish seniority as machine

              operators and may be used on other seniority

              districts than the one on which they hold

              seniority under this Agreement. In readjustments

              of force of machine operators due to force

              reduction, the senior employees qualified to

              perform the work with the machines which are

              to be retained in service, irrespective of

              group or class in which-the employee's

              seniority is held, will so far as possible,

              if they so desire, be retained as machine

              operators. Any employees used as machine

              operators may, when their use as such is

              discontinued, return to their former status

              without loss of seniority rights in their class.

              (See Appendix No. 5)"

    ' PLB-2774

                              AWD. N0. 51 -

                              CASE N0. 93

                              -3-


The sole issue involved in this disputo is whether indeed Claimant
 possessed the requisite qualification>, to be considered for the position
 involved. Had he those qualifications there is -no question but that his
 seniority entitled him to the position. According to the Carrier,
 operators of miscellaneous Roadway Machinery must have a written
 application for such service on file with the Superintendent in order to
 be selected for any openings. Claimant Lopez did not submit a written
 application to the Superintendent for such service and none appeared on
 file. Furthermore, according to the Carrier, in order to qualify for
 such a position, it is necessary for an applicant to pass a closed-book
 written examination on the rules, and also to demonstrate ability on the
 particular machines. Although no questions raised with respect to
 Claimant's ability to operate the equipment he had not passed the required
 written examination, accordinq to the Carrier. The record indicates
 that Claimant'was given a "open-book" examination with respect to the
 Book of Rules by Road Master Lawhead un January 21, 1980, which he
 passed. Furthermore, it is clear from the record that Carrier had
 changed its procedures with respect to Book of Rules examinations in
 1978 and thereafter gave only "closed-book" examinations. There is no -
 evidence with respect to the dissemination of such information to employee;

 Bascially Carrier's position was that it had no indication whatsoever from Claimant that he was interested in' working as a machine Operator since he had no letter on file with th:: Superintendent. Furthermore, even if he was interested he had not passed the requisite examination
 . 5-/ - D-72
 ~,
 -4-

 in order to be considered qualified for the position. On the other hand,
 the organization's position is that Claimant was clearly qualified for
 the position from every point of view including experience and also,
 of course, had significantly more seniority than the employee who was
 assigned to the job. Furthermore, Carrier having administered the oral
 Book of Rules examination to Claimant indicated by that action that indeed
 he was qualified in every respect for the position. The Organization
 also contends that Carrier obviously knew of claimant's interest, by
 virtue of the fact that he filed a hid for the position.

 By a letter dated April 3, 1980, carrier wrote to Claimant as follows:

              "Referring to your letter of March 27, 1980, concerning your failure to be promoted to Machine Operttor at Pittshurcl to handle the compressor.


              Under the terms of the AcTreement a letter from an applicant requesting rights to be promoted to a machine Operator must be received in the Superintendent's office and will be put on file. To date, there is no record of receipt of a letter from you in this office making such a request. Since this job at Pittsburg was a newly established position, it was put up for bid according to the Agreement for qualified Machine operators, and was subsequently bid in by Pat Pinkney who was an already established machine operator and had been working on various gangs all over the Division.


For the record, your corrected Form 1690-D,
 · Questionnaire on the Book of Rules, was mailed
 to this office to be included with your PR file.
 However, in order to qualify for a Machine
 Operator position it is now, and has been
                                              PLB-2774

                                              AWD. N0. 51

                              -S- CASE N0. 93 - -


              "since December 1, 1978, by the General manager's instructions,- necessary for an

              applicant to pass a closed-book Book of _

              Rules examination, after which he would then

              be considered for Machine Operator, and must

              qualify himself on the machine which he

              requests. It is regretable that the proper

              instructions were not furnished to you.

              However, since you had not passed the required

              written examination at the time the position

              was established, nor had you made written

              application for Machine operator position as

              specified in Appendix. No. 5 of Maintenance

              of way Agreement, you could not have been

              considered.


              If you will get together with Roadmaster LawheAd and make the arrangements to pass the written examination on form .1690-DD, and forward a letter of request to this office, we will be happy to give you cons idoration for a Machine operator's position.


              It must be understood that this office reserves the right to determine whether a man can qualify for position of Machine Operator. However, you will be given fair and impartial consideration."


From the entire record of this dispute it appears there was considerable confusion with respect to the filling of the particular position. It is apparent that until the letter dated April 3, 1980, was received by claimant, he was not formally put on notice as to the reasons for the appointment of a less senior man to the position and what steps he had to take in order to qualify for such position. This was particularly regretable, in view of his lengthy service with Carrier and his obvious qualifications with respect to operating the equipment in question. Also, it is apparent from that same letter. (supra) that Carrier indicated that it was regretable that he did not know of the particular requirements
 . . 5I a77~1

                              -6-


The Board concludes that under the circumstances, indicated above, there was apparently a lack of noticoof requirements to Claimant which requires, redress. Thus, he will receive pay for the difference in compensation of the positions of Trackman as distinct from machine Operator for the period from February 11 until April 4, 1980. It is also noted, however, that Claimant had some responsibility to attempt to fulfill the obligations setforth by carrier with respect to application and qualification for the particular job. Thus, the carrier's liability in this regard ceases upon leis roceipt of the letter dated April 3, 1980.

 AWARD
              Claim sustained in part; Claimant shall be allowed the difference between what he earned as a Trackman and what he would have earned as a Miscellaneous Machine uperator beginning Ftbruary 11,1'980 and continuing until April 4, 1980. In other respects the claim is denied.


ORDER .
 Carrier will comply with the Award herein within
 thirty days from the date hereof.'

                    I. M. Lieberman, Neutral chairman


J*6~44Ma4 J
 G. M. Garmon, ca ier Member S. E. Fleming, Employee Member

 February 8 , 1983
 Chicago, IL