'~;i:ElVEI~-Gf.Pyv_?
 LABOR RE:LA;T;t~,~.`-

NATIONAL MEDIATION BOARD

PUBLIC LAW BOARD N0. 4370


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

BURLINGTON NORTHERN RAILROAD COMPANY


AWARD NO. 27

Case No. 29












F I N D I N G S The Claimant established seniority as a Trackman effective with his hiring date of June 26, 1978. On July 27, 1981, he acquired seniority as an Assistant Foreman and

 Track Foreman. On December 15, 1989, while working as Track- -
 man, he was placed on force reduction and subsequently bumped
 into a Trackman's position commencing December 27, 1989.

As of January 1, 1990, Surfacing Gang SC-11 was being formed at Fort Worth. Pending completion of the bulletining period, an employee junior in Foreman seniority to the Claimant was placed in the SC-11 Foreman position. When the roadmaster realized his error, he notified the Claimant that he was to fill the Foreman position on Surfacing Gang SC-11 as of January 4. The Claimant refused the placement, moving to another Foreman's position instead. Upon these events, the Carrier then determined that the Claimant had forfeited his Foreman seniority by failure to report as drectedfor the SC-11 Foreman position. The Carrier relies on Rules 12 (g).and 14-as the basis. for its determination. These Rules read in pertinent part as follows:

          Rule 12:


      Temporary Assignment (g): New positions and vacancies undergoing bulletining and assignment, also temporary vacancies of less than thirty (30) calendar days duration which are to be filled, shall be assigned in the following order:


      1. To the senior unassigned employe ofthe class whether'working in a lower class or furloughed-account force reduction.


      2. To the senior employe awaiting promotion in accordance with the provisions of Rule 10.


      3. By promotion of- the seni_pr employe in the next lower class or classes in accordance with the provisions- of Rule 10.

PLB No. 4370
 Award No. 27
 Page 3
Rule 14 - Recall

 When forces are

 occur, employes who

 reduction or forced

 shall be recalled their seniority.

 Recall

 to Service

 e increased, or vacancies

 o have been cut off in force

 d to displace in a lower class,

 to service in the order of

 Off in force reduction employes shall be notWied of their recall to service by personal contact or in writing at their last_a3diess-of record and must report for service within fifteen (15) calendar days from the date notice of recall - is received.

 Employes failing to respond to recall to service under the provisions of this rule shall-forfeit their seniorz-t.y in the class to .which recalled.

 Positions may be filled temporarily pending the return to service of arecalled,employe by the nearest qualified employe holding seniority rights in the class available without delay to-the work.

 The Board finder that the Carrier has.properly applied Rule 12 (g) in this instance. The SC-11 Foreman position was a temporary assignment, as defined by Rule-12 (g). The

 Claimant was "the senior

 class . . .

 days he was Rule

 unassigned employe of the [Foreman]

 a lower class", although for several

 not recognized

 14, on which the Carrier also relies, concerns

 working in

 mistakenly

 as such.

 principally "recall to service" of--employees cut off in force reduction, but it also coyers_.,employees "forced to displace in a lower class". The Claimant had been "forced to displace" on December 15, although he displaced from one Trackman position
                                    PLB No. 4370

                                    Award No. 27

                                    Page 4


to another. Whether the forfeiture of seniority referred, to in Rule 14 is applicable in this situation ,is open to question.
 Suffice it to say that the Claimant improperly refused - to comply with the placement on January 4, 1990, as required, by Rule 12 (g).- Adverse consequences to his status thereafter are of his own responsibility. Given all the circumstances herein, however, the Board finds that permanent loss of seniority rights is not warranted. The Award will provide that the Claimant's seniority rights as Foreman and Assistant Foreman be restored- to.their original date. There is, however, no basis for the granting of back pay.

                      A W A R D

Claim sustained to the- extent ,provided in.the Findings. The Carrier is directed to put this Award into effect within thirty (30) days of the date of this Award.

                                G~


      HERBERT L. MARX, JR., Chairman and Neutral Member


                C. F. DOSE, Employee Member


              R. S NEIDER, Carrier Member


NEW YORK, NY

 DATED: