Form 1 NATIONAL RAILROAD ADJU0.
TMTNIT :BOARD
Award. No. 7186
SECOND DIVISION Docket No. 7027
2-C&o-FO-·76
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr., when award was rendered.
( System Federation No. 4, Railway Employes'
( Department, A. F. of L. - C "'I. 0.
Parties to Dispute: ( (Firemen & Oilers)
( The Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That under the current agreement, H. L. Byrd was unjustly dealt
with and his service rights violated when he was not permitted to
exercise his rights to a foreman's position after bidding on such
position which was bulletined on July 2, 1974, in compliance with
Rules 21, 24 and 25 of the agreement between the Chesapeake and
Ohio Railway Company and the International Brotherhood of Firemen
and Oilers.
2. That accordingly the Carrier be ordered to award the foreman's
position to H. L. Byrd effective July 14, 1974 and that H. L.
Byrd be compensated at the foreman's rate of pay from July 14,
1974, date such position was awarded to R. G. Davis, Jr.
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.
Parties to said dispute waived right of appearance at hearing thereon.
The Second Division asserts jurisdiction in this matter. The Carrier
claims since the matter involves a position of Foreman (which position is
normally under the jurisdiction of the Fourth Division) that the Second
Division has no standing to hear the claim. To the contrary, the facts are
that the claim is raised by an employe in the classification of laborer,
a position clearly under Second Division jurisdiction. Further, alleged
violations set forth by the Organization refer to the pertinent Agreement
covering laborers (and many other classifications). It is the status of
the claimant, and the provisions of the Agreement under which he is covered,
which are relevant. That his claim concerns a position which he seeks and
which would be governed by a different Division if he obtained it is purely
incidental.
Form 1 Award No.
7186
Page 2 Docket No. 70','`;'
2-C&O-FO-'76
In its argument that claimant was improperly denied the position of
Laborer Foreman, the Organization refers to three rules in the applicable
Agreements as follows:
Rule 21: Selecting Foreman.
"When selecting foremen or gang leaders, employes will be
given consideration for promotion, and if selection is made
from employes, proficiency and seniority will govern, the
company to be the judge of proficiency. It is the policy of
the company to promote its own men and only when competent
employes cannot be found in the ranks or when competent employes
will not accept vacancies or new positions, will it be the
disposition of the company to vary from this policy."
Rule 24: Bulletining of New Jobs and Vacancies
"Promotions to new jobs or to fill vacancies (not supervisory)
will be made after bulletin notice has been posted for a
period of 5 days on bulletin boards at point of employment -
seniority and ability to govern. Employes desiring the new job
or vacancy stated in notice shall file their application with
the officer in charge whose name appears on the bulletin, and
shall personally deliver a copy of the application to the local
committeeman. If anyone who has the right to make application
is not available during or at the expiration of the 5-day
period, reasonable time-may be extended to allow such a one or
ones an opportunity to make application. New jobs or vacancies
may be filled temporarily peaO.
wng
permanent appointment."
Rule 25: Failure to Qualify on Jobs Bid In
"An employe exercising his seniority rights under Rule 24 will
do so without expense to the Carrier. If he does not qualify
on the job transferred to in reasonable time, say 5 days, he
will lose his rights to the job he left, and will be compelled
to take whatever is open in his craft. If at the expiration of
the 5 days' trial, however, the employe's progress indicates he
is going to qualify, the foreman may grant more time."
Carrier bulletined the position of Laborer Foreman, for which four
laborers expressed interest through bids. The Agreement does not require
the Carrier to bulletin this supervisory position, and this Board finds that
full application of Rule 24 need not govern. Further, Rule 25 is inapplicable
in that it is concerned solely with rights of an employe, after transfer to
a new job, which is not the circumstance in the instant case.
Form 1 Award No. 7186
Page 3 Docket No. 7027
2-C&O-FO-'76
What is fully applicable is Rule 21, which leaves determination of
"proficiency" in selecting foremen within the judgment of the Carrier. The
burden shifts to the Organization to show the Carrier has so grossly failed
to exercise its judgment that its decision should be reviewed by the Board.
This the Organization failed to do on the property, or even (were the Board
to accept it, which this Board will not do) in additional argument made to
the Board. This Board will not disturb Carrier's reasonable use of the
rights under Rule 21.
A W A R D
The Second Division has jurisdiction. Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustment Board
B rasch - Administrative Assistant
Dated at Chicago, Illinois, this 30th day of November, 1976.