PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
AWARD NO, 99
Case No. 99
Referee: Michael Fischetti
  Carrier Member:   J.H. Burton   Labor Member: M.J. Schappaugh
  PARTIES TO DISPUTE:
 
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
  vs.
  CONSOLIDATED PAIL CORPORATION
  STATEMENT OF CLAIM:
  Claim of the System Committee of the Brotherhood that:
  The Agreement was violated when the Carrier failed and refused to place Mr. C.W. Hansler ahead of Mr. J.E. Faller on the 1993 Philadelphia Division Structural Welder Foreman's Seniority Roster (System Docket MW-3075).
  As a consequence of the above-stated violation, Claimant C.W. Hansler shall be listed immediately ahead of Mr. J.E. Faller on the Philadelphia Division Structural Welder Foreman's
  Seniority Roster.
  Findings:
  Upon the whole record and all the evidence and hearing in the Carrier's Office in Philadelphia, PA, 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 by agreement and has jurisdiction of the parties and of the subject matter.
 
OPINION
  The Claimant, at the time herein pertinent, held seniority rights on the New Jersey Structural Welder's Roster, and was regularly assigned to a Structural Welder position on a Regional B&B Gang encompassing work on the Albany, Philadelphia, and Harrisburg Divisions, thereby establishing seniority on the Eastern Zone Structural Welders Roster.
 
  Review of the whole record reveals that the 1993 Philadelphia Division Structural Welder Foreman's Seniority Roster, which is the subject of Mr. Hansler's seniority roster
 
  protest, was posted on March 1,1993.   Under the provisions of
  Rule 4, Section 6(b), of the Agreement, the time Limit of
  /IL protesting the 199.3 roster ended on May 30,1993. Mr. Hansler's fliv roster protest was filed on July 12,1993, which is clearly beyond the time limits provided by Rule 4 of the Agreement.
 
  Furthermore, the Board finds that the Carrier has met its obligation under Rule 3, Section 3(b), as Carrier was not required to post the job advertisement at Claimant's headquarters
 
point.   Although Mr. Han-,1,.   working outside of his seniority
district at the time of'lUf   of the welding position, he had
the responsibility to contact his assignment clerk.
 
  AWARD
  Claim dismissed.
  BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016

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  Michael Fischetti, Neutral Member

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. Burton,Carrier Member
 
M.J.   appaugh,Labo Member
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Conrail/BMWE/SBA 1016/99
  LABOR MEMBER 1. S DISSENT TO AWARD 99 SPECIAL BOARD OF ADJUSTMENT NO 1016 ( Re t eree M Fischett„ )
 

This Award requires dissent because the Arbitrator incorrecly reached the determination that the Carrier complied. with Rule 3, Section 3(b) in this instance. Moreover, the Carrier's finding goes against firmly entrenched arbitral precedent on this property when it states that the Carrier was not responsible for posting a job advertisement at the Claimant's headquarters point and that since he was working outside his seniority district. he was responsible for contacting his "assignment clerk" for work opportunities.
The claim before this Board was a roster protest. A junior B&B mechanic had established seniority as a Structural Welder Foreman in late August 1992 by bidding and being assigned to a.
position the Claimant was unaware existed.   The Claimant was
unaware of the occurrence until he viewed the 1993 Philadelphia Division Structural Welder Foreman Seniority Roster. Had he been made aware of the existence of the Structural Welder Foreman position, he would have bid and been placed on the position ahead of the junior B&B employee. Because of the Carrier's failure to properly inform him to the existence of the position the junior employe obtained seniority on the roster instead of the Claimant. The roster protest was filed as soon as the Claimant became aware of the violation.
With reference to the Claimants failure to obtain the Structural Welder Foreman position in August 1992, the Award states:
  "Furthermore, the Board finds that the Carrier has met its obligation under Rule 3, Section 3(b), as Carrier was not required to post the job advertisement at Claimant's headquarters point. Although Mr. Hansier was working outside of his seniority district at the time of the bulletining of the welding position, he had the responsibility to contact his assignment clerk."
The above finding is erroneous based on a normal reading of the language of Rule 3, Section 3(b) regarding the Carrier's obligations for posting advertisements under the rule. Moreover, the finding goes against arbitral precedent on this property regarding the Carrier's obligations under Rule 3, Section 3(b).
Rule 3, Section 3(b) is crystal clear.   Said rule specifically
stipulates that advertisements will beeposted at the headquarters of the gangs in the sub-department of employees entitled nCo O0hPiOeratiPfle_infill_iraettleelpositioT1.5.4e.._01117ierige_Wijicheetilue_an. employee may,tile his application. As a B&B employe the Claimant was entitled to consideration in filling the structural welder foreman position advertised by Bulletin No. 16 in August 1992.
LABOR MEMBER'S DISSENT TO AWARD 99 SPECIAL BOARD OF ADJUSTMENT NO. 1016 Page 2
 

That was never disputed by the Carrier.   The advertisement,
however, was never posted at the Claimant's headquarters point. That too, was never disputed by the Carrier. A clearer violation of Rule 3, Section 3(b) could not have been imagined. Moreover, we are impelled to point out that the Carrier couldn't validly claim ignorance of its obligations under Rule 3, Section 3(b) since it had been the subject of tour (4) previous disputes. Third. Division Awards 27592, 29826 and Awards 51 and 64 of this Board all involved this same rule, wherein it was determined that the Carrier' violated Rule 3.
There was nothing in this record which could justify the Carrier's failure to comply with Rule 3, Section 3(b
With. respect to the Arbitrator's comment that the Claimant "had the responsibility to contact his assignment clerk", we again must point out that Rule 3, Section 3(b) places the responsibility upon the CARRIER to inform appropriate employes of the availability of positions through the posting of job advertisements. There is no provision in the BMWE/CONRAIL Agreement which supersedes the clear language of Rule 3 on this point.
 
In accordance with the above, I •dissent,
 
Respectfully submitted,


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  Mark J,.Schappiut Labor,Member-SBA 1016