The Second Division consisted of the regular members and in
addition Referee Harold M. Weston when award was rendered.
1. That the Monongahela Railway Company has violated the working agreement, particularly, the note of Rule 19, when they assigned Mr. T. H. Guard an Electrician to supervise a Machinist on second trick, working hours of 6:00 P. M. to 2:00 A. M. on April 1, 1964 at the South Brownsville Enginehouse, Brownsville, Pa.
2. That accordingly the Carrier be ordered to remove Mr. T. H. Guard as Supervisor of Machinists and assign a Supervisor from the Machinist Craft.
EMPLOYES' STATEMENT OF FACTS: On March 1, 1964, Foreman J. E. Webb, working 6:00 P. M. to 2:00 A. M. notified management he was taking his fifteen (15) days vacation starting March 11, 1964 to March 31, 1964, and then was going to retire April 1, 1964.
The claimant, L. S. Marker, has filled the foreman's position as extra when needed.
On February 27, 1964, a letter by the claimant, L. S. Marker to Master Mechanic Mr. A. Kovac, requesting that he be considered for the foreman's position now in question, was set forth. A carbon copy was also sent to Superintendent Mr. C. H. Siebart.
The General Foreman, F. L. Thompson, requested L. S. Marker to assume the position temporarily, from March 11, 1964 to March 31, 1964, until such time that the position of foreman would be decided by the management and
Also, in Award No. 1211 of the Fourth Division, Referee Coburn, the board stated:
In summary, carrier reiterates its position that the shop crafts agreement was not violated when Mr. Guard was appointed to the position of foreman at South Brownsville Enginehouse. Carrier is charged with the responsibility to select the individual who, in carrier's opinion and judgment, is best qualified in all respects to meet the requirements and responsibilities of a supervisory position. This responsibility has not been delegated, by contract, to any other party nor shared with any labor organization. It continues to rest with management.
An award sustaining the claim of the employes in the instant dispute would remove these discretionary powers from the realm of management.
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.
Petitioner's complaint is that an electrician rather than Claimant, a machinist, was promoted to a position of foreman which supervises machinists but no electricians. When the vacancy arose, Carrier first offered the position to a machinist named Johnson but he declined. It then considered Claimant as well as a number of other employes for the vacancy but finally decided that the electrician should be awarded the promotion.
It is elementary that management possesses wide latitude and authority in filling supervisory positions, particularly where as here the position is not even covered by a collective bargaining agreement. The wisdom of that principle is quite apparent when Carrier's tremendous responsibilities for safe, efficient and economical operations are borne in mind.
Broad managerial powers of that type nevertheless can be restricted by contract and our examination of the applicable agreement, particularly the Note to Rule 19 thereof, persuades us that, to some extent, Carrier has limited its right to select supervisory employes.
The language quoted above was obtained through the process of collective bargaining and is not without significance, although we do not construe it to imply that an available machinist has an unqualified right to a foreman position namely because it involves the supervision of machinists. See Award 4525. If in the present case, Petitioner had offered no persuasive evidence in reply to Carrier's explanation that it had considered Claimant for the disputed position, the claim might have been denied. Here, however,and this is a compelling consideration- Petitioner has shown that Claimant had filled supervisory positions on a number of occasions without adverse criticism, so far as the record indicates. In the light of these facts, it was incumbent upon Carrier to present some evidence to show why, despite the Note to Rule 19, an electrician and not Claimant was selected to fill the vacancy. Carrier failed to come forward with proof in that regard and we can not, in this posture of the record, validly accept the bare assertion that Carrier considered the Claimant's qualifications and found the electrician more suitable for the position. A contrary result would, in our opinion, be arbitrary and deprive the Note to Article 19 of any real meaning.