- "M or,n 1 IIA'i',T.G7L:L DAZLRO:jD AD~T?7T~.Ei.;n r0AP?) AArard 12To. n578
SECO? DIVE TOT~ Doct'et No. ~3~2
2 -PCT-MA -' ^~
The Second Division consisted of the regular members and, z`n
addition Referee InTin M. Lieberman when award vas rendered.
( 'International Association of Machinists and
( Aerospace Workers
Parties to Dis-oiite:

( Penn Central Transportation Company

Dispa ;e : Claim of Fraployes:

1. The Penn Central Transportation Company has placed in supervisory positions men who are not qualified under Rule 19 of the current agreement.

2. That the Penn Central Transportation Company be ordered to compensate the men 1is,ed below (as Claimants) .for the difference in waE.-,es received by them and that payed the men listed as foremen. This claim is based. on a forty (40) hour week, the effective date being August 1.8, 1 ,069:

T~ach~_n~.;tr (C~_a~-nantW ~crp~r.~r
J. King C. Roberts
E. Boyea N. LaPorte
S. Ceci L. St. John
D. Narshall F. Archambeault

Findings:

The Second Division of the Adjustment Roard., upon the whole record and. all the evidence, finds ;hat:

The carrier or carriers and the employe or employes involved. in this dispute are respectively carrier and employe within the meaning of the Railway Lz.bor Act as appraised June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said. dispute were given due notice of hearing thereon.

The claim in this dispute arose fro:. the prcmction of four employees effective Jvne 1`3, July 1, and two oil August 13, 15^ to the position cf foreman. The claim Twas filed by letter dated August 19, 1~9. Carrier contends, an^. we agree, that the claim with retaect to two of the pra;lctions .ras not filed. in _timelY fashion. in accordance with Rule 35 of the Agreement.. Rule 35 provides
-`~ ;hat claims must be filed. within 10 calendar days of the occurrence .complained of.
(..',o 1 Award 1;o. 6,578
Page 2 Docket No. 6'~ '~ 32
2-PCT-YA -' 7]1

Petitioner claims that there was considerable confusion at this new location and it was difficult for the local committee to obtain information. Although we appreciate the problems cn the property arid are reluctant to foreclose claims on technical grounds only, we cannot condbne a sixty day lapse when the ten day rule is explicit.

The following sections of Rule 19 are relevant to this dispute:

"(a) Mechanics in service :gill be considered for promotion to positions as foreman.

Note 1 - As vacancies occur or new positions are created for Shop Craft supervisors having supervision over mechanics and. apprentices, mechanics of the respective Shop Crafts, if obtainable, shall be assigned to such positions. Where such supervisor has supervision over more than one Shop Craft he will be a mechanic of one of the Shop Crafts supervised."

The Organization contends that (1) the men who were promoted were not
qualified Machinists and (2) Cl a ir:ants , who were qualified. i,,achinists, were net
,. ,,,.~-,nsidf»^-7 .On= .l-y_., r_y~i.._v~c~ T'1- i.l-,es~ 1T:ro a~1'-ne ,~--'n- ~.. 1` ~_. ·, _

.: _ r. ~.v rV,~ uJ v v. v.a.iJau, V~irlri U 4.1_Lty~t.\i VV i14.VG

~~Aolated. Rule 19.

An examination of Note 1 above does not reveal a mandatory requirement that snpert~isors must be journeymen machinists in order to supervise apprentices and. mechanics of that craft. The words "if obtainable" in the Note above are! clear and. indicate that there are no requirements per se for supervisors of any one Shop Craft. Petitioner in its second allegation argues that Claimants, TArho were qualified, were not considered for the positions of supervisor. The record indicates, without contradiction, that Carrier offered the new positions of Foreman to fourteen I·,achinists at the location. Four of these men accepted (taro later returned to the craft) and ten refused. Claimants were not offered the promotions because Carrier did not believe they were qualified for the positions.

Was Carrier's conduct in filling the superviscry vacancies contrary to the provisions cf Rule 19? We think not. The right to select employes arid make judgments as to their competence is solely a function and responsibility cf management, unless ex-firessly limited by contract. (See Award. 4525 and. Third -Division Award 3151 among others). Even more emphasis must be placed on management's unimpaired right to select supervisors, who are in fact part of management. Unless there are specific Rule proscriptions or management has acted in an arbitrar- and capricious manner, thus prejudicing emplol~es rights, the. e can be no invasion of managemenLs perogative to -less competence off' its employer for purposes of prcmotien among other things. In the dispute before us there is no evidence to show that Claimants were not "considered." for promotion, as required by Rule 19 (a). There certainly is no rule support for the proposition that they -,hould have been selected for the promotions on any basis. The claim must be denied.
' ` Form 1 A;-card T'io. 0578
(--Page 3 Docket :do. 63"2
2-PCT-I,:A -' 73

A VT-A R D

Claim dismissed in part and the remainder denied in accordance with the Findings.

NATIO'.''1AL RAILROAD ADJUSTT.Ti,7' BCARD

By Order of Second Division

Attest: Executive Secretary

National railroad. Adjustment Board

By ,~ ~/

Ros mar ie Brasch - Administrative Assistant

Dated at Chicago., Illinois., this 14th day of P?ovember., 1973.

~.J