Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7630
 SECOND DIVISION Docket No. 7172
 ' 2-N&W-CM-`78



Parties to Dispute: ( (Carmen)


Dispute: Claim of Employes:




Findings:
The Second Division of the Adjustment Board, upon the whole record and a71 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.

On October 8, 1974 a bulletin was posted for a wreck car groundman. On October 15, 1974 the Claimant was accepted for this position. The Carrier rescinded the wreck car groundman position on October 17, 1974. The Claimant had received a favorable verdict in a personal injury lawsuit against the Carrier.


Form 1 Award No. 7630
 Page 2 Docket No. 7172
 2-N&W-CM-'78
 "vacancies ox new jobs created will be bulletined.
 Bulletins must be posted five days before vacancies

Under this rule new jobs are created when they are bulletined and they are filled permanently when an employee is accepted subject to a trial period to show his ability. Once an employee applies for a position his seniority rights control. His rights then are subject to his demonstrating his ability in the new job. In the absence of his personal injury lawsuit the Claimant clearly would have established his seniority rights to the job. The Carrier then would be required to follow reduction of force procedures to eliminate that job.

 Initially, the Organization on the property charged that the Carrier was discriminating against the Claimant because of his successful personal injury lawsuit. The Carrier denies this charge on the property and now asserts part of the record in that case to support its position before this Board. The record in the Claimant's lawsuit, however, was never presented or discussed on the property. This Board has consistently held that new evidence may not be considered by this Board if such material was not presented or discussed on the property. This Board therefore cannot consider the record of the trial court in the Claimant's personal injury case, nor can it consider evidence of the Organization's allegation that the Claimant was awarded a wrecking crew groundman position on August 27, 1975.

 In the absence of any evidence that the Claimant has waived or been estopped frdn asserting his seniority rights, this Board must sustain this claim.




                          By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By
      0semariie Brasch Administrative Assistant

r Date at Chicago, Illinois, this 31st day of July, 1978.
              AWARD NO- 76

              DOCK' 80. T172 - R WILLTAM


In his zeal to find something to sustain, the author of this Award has completely ignored the basic factual situation which existed and has thereby committed a previous error.

 The basic facts are that the position of Wreck car grovndman Which was bulletined on October 8, 1924 and an thich claimant submitted a bid van never effectively awarded. One of the Paplvye's own Exhibits to their l~ Parte Submission to this Hoard clearly indicated that the
 'effective date of the award on this position vas to have been "8:00 A924o
 10-20-TIV". Three (3) days before that effective date, Carrier - in an
 exercise of their discretion - concluded that the position was
 not needed and the bulletin was cancelled.

        In spite of this overpowering fact, the author has opined:


            "Under this role near jobs are created when they are bulletined and they are filled permanently when an employee is accepted subject to a trial period to ohm his ability. Once an employee applies for a position his seniority rights control. His rights then are subject to his demonstrating his ability in the new job. * * *."


        This statement is grossly incorrect in that it implies that an

award to a bulletined position is automatically effective upon submission
 of a bid by the employee thing could be further from, the truth. In
 thin case, the effective date of the award was clearly ahowa on Bulletin
 No. UA dated October 15, 19'4 as being October 20, 1974. The position
 would have been "filled permanently" on and after October 20, 1974 - bat
 not before.

        The author of this Award goes on to say:


            "* * * In the absence of his personal injury law suit the Claimant clearly would have established his seniority rights to the job. * * *."


        This is truly a miraculous conclusion. It has absolutely no basis

either in fact or in the record which vas presented to this Board. In the
 handling of this case before our Board the Organization correctly acknowledged
 in their lx Pane Submission that "it is mnagement's pre five to deter
 mine the amount of positions needed an the Wreck car list", Underscore ours)
 Award.

 Yet., ashen Carrier made that type of managerial determination and cancelled the unneeded position before the award to the bulletin became effective the author of this erroneous Award through some type of legerdemain known only to him ban concluded that an error occurred and that Carrier did not have the right to cancel the unneeded position before it became effective.

 This Hoard simply does not have the authority or jurisdiction to put restrictions on the Carrier over and above those which the negotiated Rules Agreement has imposed or to expand the provisions of a nego tiated Rule beyond that agreeed upon by the parties to the contract. That is exactly what this erroneous Award is attempting to do.

 Far-these reasonsq ire vigorously dissent to this palpably erroneous

 $. Re %tlCker

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