FART ff=.= - Brotherhood of Maintenance of Way Emploves
 f_Cl and
 WSF_UIE. Durlinqton Northern Railroad Company

 QTAIEM_El`If "1. The Carrier violated the Agreement when itre-
 X71-'_ CLPT.Mi: called Junior Secti,onman F:. E. Dovle_to fill
 temporary vacahcv -as Cool: He1por from Febru--
 .ar y :1 . 1'-362 to March 15. Wan. instead of re-
 calling Sectionman D. J. Mausolf who was senior,
 available, and willing to fill that vacancy.
 ,_. Because of the aforesaid vioTation, Sectionman -
 D. .j. Ma"solt *hall be allowed $'.102.40 plus
 -any and rill overtime pay allowed -junior-employee
 R. £_. Doyle. during the claim dates.''
 FINDINGS _. _ ~- __

Upon the whole rocord, after hearing, the Board finds that the parties herein are Carrier- and Employees within the meaning of Cho Railway Labor Act, as amended, and that this Board is dul* nonst.3tuttd under Public Law 89-456 and has jurisdiction of the parties and the sub-sect matter.


The record indicates that Claimant had a seniority date of March 1.7, 1980 arid Mr. Doyle, also a Sectionmanv had a seniority date o` March 26,1980. At. the time of the dispute herein. both ~npiuvees had been furloughed as a -result of a force reduction.


The record indicates that the parties signed and entered into a
 3y(Po -(O4

 new regional qar.q agreement on December- 17. 1981. In January of
 798':'. the Seattle renron of Carrier commenced operation of a
 rc-gsonal steel gang. In order to activate the oany, a number of
 i,>rr, V.-IVVCes tiad to be recalled from furlough_ In this period of
 time Ca r-rier determined that it would be necessary to fill a
 t..t·n·pc:?rarv Cook Helper's vacar~LV bh the oarrq pending bulletin arid
 assiunment. In order to fulfill that need, Carrier recalled
 Sectxonman R. E. Dovle to- fill the temporary vacancy. He
 commenced wor4.: on f-ebruarv 1, 19`1'32. Claimant was recalled and
 r-~por°tod for woi i., un March 2 , 1981 . Thc, record also indicates
 I.liat another employee. a Sect.ionrnan roamed Galloway, had a
 _.~niuritv data of Mat 10, 1979 and was recalled and reported frjr
 wcr-I or, the same =steel. gang on f=ebruarv 22. 15'8'2.

 F~utitionvr retie=_- in part on Rule 9 of the Agreement which
 provide-i, in relevant- portion as follows: -

            "Whr>n an employee, laid off by reason of force reduction desires to retain his seniority rights. h~- nltist with.tn ten (19) calendar days of date so .Atf~acted f.Lle his name and address 1.n wrltinq r,r~ the form =upplieri for 'that f;urpose. with his foreman or super-visor with copy to General Chair-mar., rs.c:eipi of which will be acknowledged in writing by the Company. Ile must advise 1n writing of any subsequent change of address, receipt of wh.Lch will be similarly acknowledged. When new positions of more= than thartv (':U) calendar days - durration are established or-when vacancies of more

gq&o-(oy

            than thirty (00) calendar days duration occur. employees who have complied with this rule will be Ua11ed back. to service in order of their seniority.-"


F'cijtiorier alleaos that Claimant had filed has name and address
 th timely fashion with Carrier as required by the rule and was

·ntatled to be recalled to service -in accordance with his -."I,ai~ritv ranking when a temporary posi-Lion was available. In this coyn, actordxnu to Petitioner, Carrier did not notify him whc.In the temporary position was available and did not qxve him an opt.rortunii., to return to service; instead Carrier recalled and d a ,onior employee, namOlv. Mr. Doyle.


F'Ntitioner notes that Carrier attempted to excuse its mistake in this instance by indicating that there were some difficulties in -mplementina the new rule and that it in good faith made an attempt to abide by the rule in this instance. Carrier's alleged problems, according to Petitioner, were insufficient to excuse its obvauus and clearcut violation of the provisions of the Rule. I'r, the course of that mistake in implementing recall process. Claimant was made to suffer- which was unconscionable from the

·,tandpnant of the Organization. In addition, Carrier's argument Lhat Claimant was not a proper Claimant in this matter is an arror since he was entitled to be recalled to fill the temporarV


vacancy by vtrtoe of seniority. whether or not some other
 co 0

 :-rnr-lovev had a better right to claim thc. work. Petitioner arQcres
 >hnnit the "&me of the claimant An immaterial insofar as thp
 _a=-,lotion of the Agreement is concerned- and should be of no
 r;n, c·rn lo -;cArripr (Third Division Awards 106VO and -i8Cr577.

Carrier argues that there has been no affirmative showing by the ::r-~,r;a.~;ta.on It;oL Cl<.rmant had- on file the orropcr form indicating 5_. "not ante: ,6ddi t..":.._ and that In-accur:oance with such form he was .oraUed for t:_ recallod in advances--o'f --Mr. DovlE.- furthermore. r..r r a.c~r :;;r-:~;ae.s that Claimant was not the %ienior- employee on-the ...i r . b;,;cr lMr . Gollowny had more sunzora.tv than no did and_ ii"rntorn. tthn claim is invalid. In addition. it, la noted that :;·,r-ricer actadin coed Inith in this instance and all available: .;;..;. 1,·;wf,r we:-. imm"Knateiv put to war! and-c:verv attempt was m-cede . .-.ar-ricr la ;Poprrly r,-call employees- to -Protect- -temporar. -cancie·s. There is - no showinu by Lhe Organization to gainsay this wtatement.


..-, fhn Lro.-,rd analvzes thr· record of this dispute it is apparent.
 rhoi tlh- Issue of whvther or not Claimant- lead the proper form
 1'-.--::4 on Tale w-_ net ~is·vd tin tht- property and. in addition. it
 in ,-cl h evident that au: h form was on file since Claimant was -
 _;;dpnd recalled in March 1952. With rrebrect tta the argument that
 01O;rLMOint. Was thr imornpE-:·r Claimant in this dispute. the Board
 3W too -(0V

 dues riot agree. This Board believes that the rational for such
 LWCW--=0" is. well cyprvrood in Tfurd Division Award 18557 which
 holds, .inter alia, as follows; - -

                "nn_· of a croup entitled- to Perform the work: prosecute a claim even-i-fthere be-others

            I";,v2ou a h,relerence to ..i_. 1hc essence of the

                                                    -


            claim by the UroanizatiDn in to" -rule:tolatio" arid the penalty claim in merely incidental to it. The:, fanL_Lhat anol_hr·=r emplovee may have -, bptte, rioht r_o mate this claim is of no con.:ro to Car-rrer arid does not re3yeve carrier of rh- v,ulat.jun and penaltm arlsinq therefrom."


"v th" Beard views it, ':here is no doubt but that Carrier- did not
 had(: by +-ho "_nlcrity recall provisions of Rule 9 cited suprn.
 lo lkt:~ ;?<Lnnc, , Claimant was avnilaWe and should have been
 __allPd in or eforeence-t.o Mr. Doyle. - In accordance with
 lonosta"dinrg practice, however, and in view of the points made by
 r-r r l,.. ;,r, thA=, score, Cloa-mart is not entitled to overtime pay
 cSucW He is entitled, however, for payment for all time lost

. f· .rrl t of tire improper assionmorit up to March 19, 1982 Analudi"Q strGxqht times for any overt.-one:- work by Mr. Doyle durincr thy claim period.-

3(4(po- l04

 AWARD

          1 . Claim sustained.


          1. Claimant =hall receive st.raioht time pay in the

          nmount of 2', 10^.40 plus straight- time for any

          overtime pay allowed Mr. R..- E. Doyle during the -

          period *rom February 1, 198'2 through March 19,

          198''.. . -


DR:DER -

            Carrier will comply with the Award herein within thirty (3'_'·0i) days from the date hereof.


1. M. Lieberman. Neutral-Chairman

      ___-.~Y


W. Flodyns ,.,-F. H. Funk.
 Carrier Member Employee Member

 St,. Paul, Minnesota -

      L 1988 -