Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10991
SECOND DIVISION Docket No. 10138-T
2-C&NW-CM-'86
The Second Division consisted of the regular members and in
addition Referee Steven R. Briggs when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago and North Western Transportation Company

Dispute: Claim of Employes:

1. Carmen Scott A. Dodson, Thomas K. Patten, Larry L. Carpenter, Jack B. Moore, Thomas R. Coupee, Marvin E. Schoenrock, Dennis B. Gravert, Herschel A. Eads, Timothy L. Sherman, Dale A. Baker, and Richard F. Nelson were unjustly deprived of work and wages when the Chicago & North Western Transportation Company violated the controlling agreement and the provisions of File 83-4-43, letter of instructions issued July 15, 1957, by Director of Personnel T. M. VanPatten, on November 5, 1981, when it allowed Foreman R. E. Gilbert to displace a junior employe belonging to the carmen's craft.

2. That the Chicago & North Western Transportation Company be ordered to pay the eleven Carmen claimants eight (8) hours pay per day at the carman welder's rate of pay for the following dates, as these employes were affected on a day-to-day basis by the abolishment of carman welder's positions,:

S. A. Dodson Nov. 5,6 (2 days)

T. K. Patten Nov. 9,10 (2 days)

L. L. Carpenter Nov. 12,13,16,17 (4 days)

J. B. Moore Nov. 18,19,20,23,24 (5 days)

T. R. Coupee Nov. 25 (1 day)

M. Shoenrock Nov. 27 (1 day)

D. B. Gravert Nov. 30 (1 day)

H. A. Eads Dec. 1 (1 day)

T. L. Sherman Dec. 2 (1 day)

D. A. Baker Dec. 3 (1 day)

R. E. Nelson Dec. 4 (1 day)

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 employes within the meaning of the Railway Labor Act as approved June 21, 1934.
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This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

As third party in interest, the American Railway and Airway Supervisors' Association was advised of the pendency of this case, but chose not to file a Submission with the Division.

On November 5, 1981, the position of Assistant Foreman at the Carrier's Clinton, Iowa Car Shop was abolished. The position was held by R. E. Gilbert, and was covered under the terms of an Agreement between the Carrier and the American Railway and Airway Supervisors Association (ARASA). When the position was abolished, there were two Foremen working in the same class and seniority district who were junior to Gilbert.

The Carrier determined that Gilbert was not qualified for either of the two positions. It therefore permitted him to exercise displacement rights as a Carman based upon his seniority in that craft.

The Organization asserts that Gilbert was improperly permitted to exercise displacement rights into the Carman craft, thereby depriving the Claimants of work and wages as detailed in the Claim. The Organization acknowledges that Foremen and Supervisors promoted from the Carmen ranks continue to accumulate seniority as Carmen, and under certain conditions may exercise such seniority to return to Carmen positions. However, it argues that in the instant case Gilbert could have displaced a Foreman junior to him and continued working as a Supervisor.

With regard to Gilbert's qualifications as a Foreman, the Organization argues that since he served in a Supervisory capacity at Clinton, the Carrier certainly must have felt he had the potential to serve in a similar capacity at other locations and over different processes. Gilbert should have been given opportunity to qualify for other Supervisory positions. Instead, the Carrier disqualified him from same before he even held the jobs. And it appears that he voluntarily relinquished his seniority rights in the Supervisory class by signing a November 2, 1981, letter attesting to his lack of qualification for the supervisory jobs held by Foremen junior to him.

The Carrier notes that as a Foreman, Gilbert was covered by its Labor Agreement with the American Railway and Airway Supervisors Association. Under Rule 8 of that Agreement:

"Employes whose positions are abolished ... may exercise their seniority by displacing a junior employe in their seniority district or revert to the class from which promoted but their exercise of seniority in that class shall be governed by the rules and agreements governing the class to which reverting."

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Moreover, both parties have relied upon a July 15, 1957, Letter of Understanding from T. M. Van Patten, Director of Personnel, to General Superintendent Motive Power and General Superintendent Car Department. And the Organization has cited Second Division Award No. 5933 in support of its position. That Award rested heavily on the interpretation and application of the 1957 Letter Agreement.

In concert with Award 5933, this Board finds that resolution of the instant case is also dependent upon the application and interpretation of the Van Patten Letter Agreement. It is quoted in pertinent part below:

"Agreements in effect with the federated crafts have been interpreted as follows:

1. Employes promoted from federated crafts to

supervisory positions who as result of abolishment

of their position are unable to hold position as

supervisor and thereby revert to the class from

which promoted are in possession of displacement

rights in accordance with their seniority.

2. Employes promoted from positions coming under

the scope of the federated crafts' agreement to

supervisory positions, who as result of abolishment

of position and failure to exercise seniority as

supervisors, or on account of voluntary relinquish

ment of position, return to positions coming under

the scope of the federated crafts' agreement, are

not in position of displacement rights and are not

entitled to displace any junior employe in the

craft. These employes, returning voluntarily to

the class either as the result of giving up their

position or as a result of position abolished and

failure to exercise seniority to another position

for which qualified are permitted to take any open

position, and in the event there is no open

position must wait until their seniority permits

them to bid on a position. (emphasis supplied)."

Thus, in accord with the Letter Agreement, a Foreman returning to his. craft as a result of abolishment of his Foreman position must first exercise his seniority to another appropriate Foreman position for which he is qualified. In Award 5933, which involved the same parties as does the present case and strikingly similar facts, the Board sustained the Claim in large part: because it found no evidence that the Foreman was not qualified to take another supervisory position. That Board found:
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"Carrier's averment that Hitz (the foreman) was not

qualified to perform service as a foreman on the

repair track is a selfserving conclusionary state

ment and has no evidentiary value.

While it is true that Carrier has the initial right

to determine qualifications of its employes the

determination is subject to rebuttal.

The record contains no admission of waiver by Hitz

that he was not qualified to displace the junior

foreman on the repair track."

In the instant case the record does contain a written admission by Gilbert that he was not qualified to serve as a Supervisor in the available positions to which his seniority entitled him. Therefore, we find no reason to discount the Carrier's determination that he was not qualified for such positions. Furthermore, we do not regard Gilbert's written acknowledgment of his lack of qualification as evidence that he voluntarily relinquished his Supervisory Seniority Rights. Rather, his letter merely attested to his qualification level. It did not indicate that he wished to waive his right to exercise seniority as a Supervisor.

We note the Organization's argument that Gilbert's written statement was not given to employe Representatives on the property. However, the statement itself is not a new argument, it merely confirms the Carrier's argument that he was not qualified for the Supervisory positions to which he was entitled by virtue of his seniority. And that argument was indeed raised on the property by the Carrier.

In accordance with the Van Patten Letter Agreement of 1957, we find that Gilbert was not able to hold a position as Supervisor and did not voluntarily relinquish his Supervisory status. He did not "fail to exercise seniority to another position for which qualified," and it was appropriate for the Carrier to permit him to exercise his Carman seniority in returning to his craft.

Both parties presented several additional arguments, which we have evaluated in their entirety. Those which were not made on the property were disregarded. Since we have determined, however, that resolution of this Claim rests on application of the 1957 Letter Agreement, there is no need to discuss the remainder of the parties' arguments here.
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A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division

Attest.

Nancy .fiver - Executive Secretary

Dated at Chicago, (/ Illinois, this 17th day of September 1986.
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