Special Board of Adjustment No. 956
PARTIES Brotherhood of Maintenance of Way Employees
TO
DISPUTE: and
New Jersey Transit Rail Operations, Inc.
STATEMENT (a) Carrier violated the Schedule Agreement,
OF
CLAIM: particularly Rule 3 Section 3(d) when it failed and
refused to allow B&B Mechanic Steve Davis to place
himself physically on the awarded B&B mechanic's
position, effective August 30, 1984.
(b) Claimant Davis shall be compensated for eight
hours at the punitive rate for each day, including
overtime, travel time from Red Bank, New Jersey to
the Raritan River Drawbridge, and mileage.
FINDINGS: Rule 3 Section 3(d) reads as follows:
"Awards will be made and bulletin announcing the
name of the successful applicant will be posted
within seven days after the close of the
advertisement. This Rule shall not be
construed so as to require the placing of
employees on their awarded positions when
properly qualified employees are not available
at the time to fill their places, but physical
transfers must be made within ten days."
Claimant, a drawbridge operator with 11 a.m. to
7 p.m. hours and Saturday and Sunday rest days, was
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awarded a B&B mechanic position with 7 a.m. to
3:30 p.m. hours and the same rest days. He was
not released by Carrier to work in the awarded
position within 10 days of the date of the award.
Carrier made reasonable efforts to fill the drawbridge operator position but no properly qualified
employee was interested or available. It understandably could not permit that important post to
be vacant while its advertisements and recruiting
efforts met without success. Finally, the position
was filled with a track department employee pending
qualification.
There is no evidence that Carrier acted in bad
faith or in any manner attempted to evade obligations under Section 3(d). It does not appear that
claimant suffered any loss because of his late
transfer or was subjected to undue inconvenience.
The Rule was clearly breached and where that
occurs, we will ordinarily sustain a monetary claim
to enforce the Rule and preserve the integrity of
the Agreement. We are not in accord with Carrier's
view and some Award holdings. The Board lacks
authority to sustain a claim for compensation where
a rule has clearly been violated if the contract
does not contain a penalty pay provision.
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Nevertheless, we will deny paragraph (b) of the
present claim in the light of the specific facts
of record and the absence of any pattern by Carrier
of similar violations. The situation is one where
Carrier has encountered unexpected and unavoidable
difficulties in filling a critical position and
where claimant has suffered no loss. Carrier will
be expected to take precautions to prevent a
reoccurrence of this difficult problem. Third
Division Award 13376 is consistent with our general
conclusion.
AWARD: Paragraph (a) of Claim sustained. Paragraph (b)
denied.
Adop Newark, N J~.-
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, 1987.
Harol . Weston, Chairman
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Carrier Member Employee Member
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