PUBLIC LAW BOARD NO. 2960
AWARD NO. /,;
CASE NO. 160
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated their Agreement when it
removed Machine Operator R. D. Zink from the Mark
III Tamper and assigned it to Machine Operator
Wawryk. [Organization File 3T-4721; Carrier File
81-84-2131
(2) Claimant Zink shall be given. Class "A" seniority
as of April 30, 1984; and, shall be compensated
the differential in rate of pay received and the
Mark III Tamper rate of pay, and any differential
in hours of service rendered by the Mark III
Tamper Operator.
OPINION OF THE BOARD
This Board, upon the whole record and all of the evidence,
finds and holds that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning of
the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.
The case is based on the same circumstances as those which
generated the. claim considered by this Board in case No.
PLB
2960 -2-
ALA-J0
129
159/Award 127. The facts in that case were set forth as follows
in the decision:
"The Claimant and Machine Operator Nelson were Class
B
Machine Operators, Nelson being the senior employee. Prior
to May 6, 1984, the Carrier bulletined vacancies on Tie
Gang 3119 for a Class
B
Spiker and on Tie Gang 3120 for a
Class A Tie Injector Operator. The Employees submitted
multiple bids listing in order the jobs of their
preference. Nelson's 8th choice was the spiker position
and the Class A,Tie Injector position was his 23rd choice.
The Claimant had also submitted a bid for the Injector
position. However, the Tie Injector was initially assigned
to Employee Wawryk. Consequently, Nelson was given the
Spiker position. All was well until it was subsequently
learned that Mr. Wawryk had earlier been disqualified from
the Tie Injector, and thus, it was agreed with the Local
Chairman that he would be removed from the job. It was
determined that there had been no Class A bidders for the
job so under the rules employees with Class B seniority
were considered. Nelson was contacted and agreed to take
the Injector position. As a result, the Claimant filed a
claim contending essentially that since Nelson had already
been awarded the Spiker job for which he had higher
preference than the Injector job, he should be required to
stay on that job."
In this case, the Claimant is the employee whom Wawryk displaced
after his removal from the Tie Injector. After his removal, the
Carrier reviewed the Claimant's original bid preferences and
placed him on the Class A Mark III Tamper. He was the senior
bidder for this position based upon his Class
B
Machine Operator
rights.
The Claimant, who was occupying this position at the time,
had also obtained the position based upon his Class
B
Machine
operator rights. After being removed from the Mark III Tamper,
Claimant was no longer able to hold a Class -A machine position.
Consequently, he did not receive Class A seniority. The
PLB 2960 -3- - ~.,p jig
Claim was presented on behalf of Claimant for a Class A
seniority date of April 30, 1984, as welL1 as lost earnings.
Our reaction to this case is much the same as it was to
Case No. 159. The rules don't strictly apply when an employee
is removed from a position because it was mistakingly believed
he held seniority to the position. We concluded then, as we do
now, it is reasonable for the carrier in the face of the error to
revert to the status quo or, in other words, put-Humpty-Dumpty-back
together-again to the best extent possible.
As it related to Mr. Wawryk it was reasonable to place him
where he would have been but for the mistake. This necessaryily
meant that the Claimant was displaced. It is unfortuante that
he could not hold any other Class A job. However, the fact that
an error was made with respect to Wawryk does not entitle the
Claimant to Class A seniority or any seniority preference over
Wawryk. The Claimant is not entitled to any windfall or to be in a
better position than if the mistake had not been made.
AWARD:
The Claim is denied.
Gil Vernon, Chairman
D. . Bartholomay Si on
Employe Member ri r M er
Dated: ~c