PARTIES TO DISPUTE
STATEMENT · OF, CLAIM ' ',

 PUBLIC LAW BOARD N0. 4138


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

'',i~ I~. ~f CS4'TRANSPORTATION, INC. ,j', , . ;
First: that the Carrier violated the Agreement when it assigned J. L. Holloway,'Bridge and Building ~Subdepartment;Employe, to

 Track Subdep4rtment work.
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 Second: that claimant M. L. Robinson be paid 8 hours straight time for each date of April 25, May 8, 9, 12, 13, 14, 15, 16, June. 2, 3, 4, 5, 9, 10, and 11,'1986, at Crane Operator's rate of pay.

 Third: that claim was made continuous until.violation was

 stopped.

 FINDINGS
During the time in question, Claimant was assigned to the Track Sub- ,

 department. On the 'dates stated, while Claimant was so assigned, a B&B Sub-

 department employe, J. L. Holloway, operated a crane to perform certain Track Sub-department functions. The Carrier acknowledged repeatedly that, Holloway performed Track Sub-department functions and offered to settle this claim, while admitting no violation of the rules. The Carrier then author3-, zed payment to Claimant for the difference in earnings for the period of
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 time Holloway worked on the,crane. What this payment_amounted to was

 payment at. the crane operator'q,rate for "the 22fhou~s'S2'minutes'~difference

 between the amount of time that Holloway worked as a crane operator .versus

 the time Claimant worked at his assignment.

 The,Organization states that Holloway's crane operation continued until

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 September 4, 1986 and filed a continuing claim on that, basis. Rule 26 (`c),(,2),

 provides:

 A claim may be'filed at any time for an alleged continuing violation of the Agreement and all rights of the claimant or claimants involved thereby shall, under the rule, be fully protected by the filing of one claim or grievance based thereon as long as such 'alleged violation, if found to be such, continues. However, no monetary claim shall be allowed retroactively for more than 60 days prior to the filing thereof. With respect to claims and grievances involving an employe held out of service in discipline cases, the original notice of request for reinstatement with pay for time lost shall be sufficient.

 Rule 5 provides, in relevant part:

 Seniority Ran!
The grade or·'rank sequence'of employes in the 'track and bridge and building subdepartment$ shall be as shown below, the lowest number designating the highest rank and the highest number the lowest rank in the respective subdepartments:

 5(a) .'Track Subdepartment Rank'No. 3 y. Operators of ditchers, cranes, shovel draglines, core drills_ a'dzers, bullgraders, grouting machines, track cleaners, tampers (also assistant dual automatic tamper-liner, oper4tor),,cranes (also assistant crane operators), tractor (with low boy or ~lat bed trailer), motor-gradersi~'ditcher spreaders

 ('also ,ditchbr' 'spreader Assistant operator), au4igauges, swing'

 -

 loaders, baliast.regulatgr~, ballast,cleaner,,;bribber;'multiplg` spike''driver, tamping jac~,,tie bed scarifies; track~liner, back hoe, off-track and on-track brush cutters, ditcher engineer,
 ditcher fireman, hy-rail ditcher dumper, end loaders, gradalls, mannix winch cart, pile driver engineer (,also assistant pile driver engineer), rail heater, tie destroyer, tie handler, tie

 injector, tie saw, tie shearer, tie spacer, weed burner, spiker-,

 gauger, and similar power driven machines in this class.

 5(b) Bridge and Building Subdenartment
 Rank No. 1 - Foremen.
 Rank No. 2 - Assistant foremen, lead carpenters, and lead painters. .
 Rank No. 3 - Engineers and assistant engineers of pile drivers, locomc
 tive cranes, or similar machines, core drill operators.
 Rank No. 4 - Carpenters, painters, tanners and sawyers.
 Rank No. 5 - Carpenter helpers, painter helpers, tinner helpers;
 operators of concrete pumps, adzers, and similar machines;
 drawbridge tenders, pumpers, watchmen and trick drivers.

 Rank No. 6 - B&B repairmen.

 The issue to be'decidedinthis dispute is whether.the Carrier violated the Agreement by Holloway's performance of Track Sub-department work instead of Claimant;-and if',so_ what should the remedy be.

 ' The_popitiop,bf tl;e Organization is that the Carri2r has violated the .
 Agreement'a~nd~,th'atIthp ._Organizat,ion is permitted to~;'le a continuing claim.
 The Organization contends that~t`he, Carrier' is not permitted to assign the, ,
 work of one sub-department to 'another, as it did here: The Organization
 notes that at no le3el of the dlilim'process,has the Carrier, declined the
 claim on the basis that no violation was committed. The Organization
 indignantly points out 'that the,CarFier knew it was violating the Agreement
 and thought it could "get away with it" because Claimapty, was employed.



and it has made the ,several settlement offers in. a; spirit of 'compromise. `!~,:~,f , y ;i~'i, 0The Carrier contends that Holloway was permitted by the Agreement to operate

 the crane,~because Rank No. 3, set forth in Rule 5(b),,includes "locomotive ·,~'

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    crane" in the B&$:Sub-department. The Carrier rejects the notion, as the


    Organization asserfs, that the work in question was to be performed only, by

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    one group.or clans of. employes:' Further, the Carrier maintains that the, ,1··


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    'Organization isInot-$ermittq3.'Cb·file a continuinO1aim because such a r' ~:


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    claim -does not adhere to the provisions of Rule 26.1


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        After review of the entfre,record, the Board finds that the Carrier


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    violated the Agreement and directs that the Carrier'pay Claimant the difference between:what he earned.in his assignment and what he would have


    earned bad he performed the ~work.Holloway performed.,y ~, ;, I,_,

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        The Organization has sustained its burden oflproving that the Carrier "

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    permitted a B&B Sub-department'employe to operate a crane,"'thus performing,.'.Y'1'; rif,. 1.,,.

    Track Sub-department work. There is no real dispute that Holloway operated.

    the crane. The Carrier's argument that he is permitted to do so according 4' %'

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    to Rule 5(b) is not supported by the facts in the record. Rule 5(b) refers,


    to operating a "locomotive crane." However, the faotspof this case and the

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    language of 5(a) _which defines the Track Sub-department ranks, refers to.

    operation of a "crane." The evidence is that these are two different types.,', - ,

    of machinery, while the Carrier's argument rests on the premise that they

    are one. Holloway may well be authorized to operate a "locomotive crane"


    pursuant to Rule 5(b), but that does not necessarily mean that he is . . .~,

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    permitted to operate a "crane" whose operation is performed by employes .


    with ranks in the Track Sub-department.


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    As to the question of a continuing claim, the organization may make


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such a claim as set forth in Rule 26(c)(2), but that claim is limited severely in the rule and the Organization must prove damages for those

 additional days. It has not, done so here.

 As to the measure of damages; Claimant is entitled to the difference,

 between what he earned in his assignment and what he would have earned had he performed the work Holloway .performed. This means not just the difference ip'Ipay for the total time Claimant did not work that Holloway did work -- which Claimant has been paid -- but also whatever difference there is in, the,pay'Claimant would' have received had he,wqrked as a crane operator,

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 ,on the day~sl Holjopiay ;did, if~on~ those days Claiman~lwa~ working in ,a lower

 paying. position.

 Claim disposed of per Findings herein.

 Date: A-"o '?, Iqqe

 Member,,

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 Carrier Member,

 gan zation a ber