The Second Division consisted of the regular members and in
addition Referee Roscoe G. Hornbeck when award was rendered.
SYSTEM FEDERATION NO. 2, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L.-C. I. O. (Carmen)
not in the employ or ever having been in the employ of this carrier would be without any basis or precedent, and, further, the carrier points out that such claim is not a proper claim to come before your Honorable Board. Consideration should be given to Article V of the agreement made 4th of June, 1953, which provides that such agreement
Mr. Saldivar, in whose behalf the instant claim is made, is not an employe, has never been, and has no claim on this carrier for employment through contractual or any other rights.
Rule 15 of the agreement, the seniority rule, is clear in the subdivision maintained under carmen's craft, and also that seniority lists approved by the master mechanic and local chairman are permanently established unless protested in writing within thirty (30) days after posting, which protest was not made until several months after the hiring of Mr. J. G. Gonzalez. Further, classification of work rule, Rule 64, is clear that it includes painting within the scope of carmen's work and points out "all other work generally recognized as painters work", which divides the duties of painter from that generally considered as carmen's work.
Carrier also takes position, without prejudice to any other position expressed or implied, that application for employment submitted to the carrier by Mr. Saldivar, was dated January 31, 1957 (emphasis supplied), reproduced and made a part hereof as Exhibit No. 12, while claim that the carrier violated the provisions of the June 4, 1953 agreement, "when they refused to allow Journeyman Carman Painter F. G. Saldivar to displace J. M. Gonzalez as a painter on December 26, 1956 (part 1(a) of claim) predates his application for employment.
This carrier takes the position that the employment of personnel is a managerial prerogative, that it has no obligation to employ furloughed employes from other railroads, industries, or from any other source. In the instant claim, carrier has shown that Mr. Gonzalez is a qualified painter, substantiated by affidavit reproduced as Exhibit No. 13 and made a part hereof.
The claim before your Honorable Board should be denied in its entirety for all the reasons and causes as set out by the carrier.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
This claim may be determined for the same reason as set out in Docket No. 3117. 3252-8 373
But the merits of the claim of the employes in behalf of Carman Painter F. G. Saldivar need not rest alone on the effect of the agreements discussed on this submission.
Assuming that the agreements between the Carrier of December 15, 1937 and September 8, 1950, and the multiple agreement of June 1, 1953, to which the Carrier, the party here, the Missouri Pacific Railroad, the employer of Mr. Saldivar, and the Employes, were signers, are effective, the controversy may be resolved upon correspondence in this record.
Following considerable interchange of letters respective the classification of Mr. Gonzales, as a Carman Painter, and his seniority rating, and the insistence of the Organization that Mr. Saldivar be permitted to replace him, J. O. Roe, Vice General Chairman - Carmen, in a letter to R. E. Johnson, Vice-President and General Manager of the Texas Mexican Railway, of date July 6, 1957 made a proposal. Mr. Roe said, in part:
Accepting the foregoing proposition of date January 20, 1958, Mr. Johnson said, in part:
This letter from Mr. Johnson is not a full acceptance of the two proposals of Mr. Roe, but he accepted it as satisfactory and made no objection to the failure of Mr. Johnson to approve Mr. Roe's proposals in their entirety.
Conformable to the foregoing agreement, the status of Mr. Gonzales was changed and he was so notified. He, in all probability, knew of the conditions which resulted in the changes. He, and the Carrier, relinquished their rights, which had considerable merit and had not been promptly challenged, to Mr. Gonzales' classification as a Carman Painter and his seniority rating as such on the roster.
In the situation thus developed, the Organization is estopped to assert and press the claim here presented.
The carrier, by removing Jose M. Gonzales' name from the carmen painters' seniority roster and placing it on the painter helpers' seniority roster at Laredo, Texas, with a seniority date of May 1, 1956, acknowledged the fact that Gonzales did not have the requisite qualifications to be employed as a carman painter since he did not have the qualifications prescribed in Rule 63 of the agreement effective September 1, 1949 ; that is four years' practical experience at Carmen's work.
According to the record, at the time Gonzales was hired, the carrier was unable to employ a carman with four years' experience, nor did it have employes eligible to be upgraded to carmen in accordance with Article III of June 4, 1953:
Therefore, after hiring Gonzales the carrier had the right to upgrade him and retain him in service as a carman painter until such time as a qualified carman became available. The record shows that a qualified carman did become available on December 26, 1956. Thus the majority 3252-10 375