Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7274
SECOND DIVISION Docket No.
7136
2-C&NW-MA-'77
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
( International Association of Machinists
( and Aerospace Workers
Parties to Dispute:
( Chicago and North Western Transportation Company
Dispute: Claim of Employes:
Claim that the Carrier:
1. Violated the provisions of Rules'
#16, #17
and
#29
of the
Controlling Agreement when it improperly assigned a junior
Machinist employee to a Mechanic-in-Charge position in lieu of
a senior applicant.
2.
That accordingly the Chicago and North Western Transportation Co.
be directed to compensate Machinist R. Niemi in the amount of
$11.28
per day, the differential in pay between Machinist R.
Niemi's position and Mechanic-in-Charge position currently in
dispute. Such compensation, as requested, commencing with the
calendar date of February
8, 1975.
3.
Compensation as requested by continuing in manner from February
8,
1975
until such time as Machinist R. Niemi is properly assigned to
Mechanic-in-Charge position
#663.
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.
On January
30, 1975
Carrier posted a bulletin advertising the availability
of Mechanic-in-Charge position
(#663)
at Carrier's East Minneapolis fueling
facility. Claimant applied for the position which was assigned to an
employe who was junior to Claimant.
Form 1 Award No. 7274
Page 2 Docket No. 7136
2-CaNw-MA-'77
The Organization contends that Carrier violated Rule 16 of the Agreement
and Paragraph 7 of the June 1, 1939 Memorandum of Agreement.
Rule 16 provides in pertinent part:
"When new jobs axe created, or vacancies occur in the
respective crafts, such new jobs or vacancies will b e
bulletined.
"In filling vacancies or new jobs, the oldest employe
in point of service will be given preference."
Paragraph 7 of the June 1, 1939 Memorandum of Agreement states:
"In filling positions of mechanics-in-charge, senior
mechanics at the point will. be given preferred
consideration."
The Organization contends further that Claimant was qualified for the
classification of Mechanic-in-Charge because he was assigned to relieve the
Mechanic-inCharge for a five week period in 1973-1974.
Carrier's contentions may be summarized as follows:
1 - Bulletining the position of Mechanic-in Charge was an error made by
a local Superintendent.
2 - Mechanic-in-Charge positions have always been appointed by Carrier
since 1936 when the job title was changed from Working Foreman to Mechanic-inCharge.
3
- Claimant was less qualified than the junior employe selected based
on Claimant's performance during the five week relief period in 1973-1974.
Carrier has the right to determine qualifications.
The Board is of the opinion that the claim must be denied.
Assuming, without deciding, that Carrier is bound by an erroneous
bulletin, Paragraph 7 of the June 1, 1939 Memorandum Agreement and not
Rule 16 determines the criterion for the selection of a Mechanic-in-Charge.
Paragraph 7 does not require the mandatory appointment of a senior employe.
It has the effect of requiring the appointment of the senior employe if
there are two or more employes deemed to be equally qualified. Determination
of qualification is the Carrier's province unless it is shown that Carrier
was arbitrary or capricious in its determination. Such has not been shown
in the instant dispute.
Form 1
Page 3
Award No. 7274
Docket No. 7136
2-C&NW-MA-'77
Second Division Award No. 861 is distinguishable in that qualification
was not in issue in that dispute.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Ad,--ustment Board
By
Dated at
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
arie Brasch - Administrative Assistant
Chicago, Illinois, this 5th day of April, 1977.