Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12119
SECOND DIVISION Docket No. 11648
91-2-88-2-195
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(The Denver and Rio Grande Western Railroad Company
STATEMENT OF CLAIM:
1. That the Denver and Rio Grande Western Railroad Company violated
the provision of the controlling Agreement when it added a stipulation that in
order to bid Bulletin No. 624, advertising a vacancy for a Cayman CutterWelder working Burnham Steel Shop and also truck driver of Unit 341 as needed,
the successful bidder must be off the derrick crew.
2. That the carrier rebulletin the position of driver of Unit 341
without the stipulation that the successful applicant must be off the derrick
crew.
3. That the carrier be ordered to compensate Cayman DuBose all overtime earned by the driver of truck No. 341 until this claim is resolved.
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 employer involved in this
dispute are respectively carrier and employer 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.
This dispute concerns the posting of the vacancy resulting from the
retirement of the incumbent driver of Unit 341 (Moble Repair Truck). The
Carrier posted Bulletin No. 62:L "for a Cayman Cutter-Welder working Burnham
Steel Shop and also driver of Unit 341 as needed and other duties." It then
cancelled that Bulletin and replaced it on June 12, 1987 with Bulletin No.
624. The new Bulletin differed from the initial posting in that it required
that the "[s]uccessful applicant must be off derrick crew." Cayman C.L.
DuBose, the Claimant, and Cayman J.H. Lockwood both submitted bids on Bulletin
No. 621. Claimant was senior to Lockwood. However, only Lockwood submitted a
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bid on Bulletin No. 624. Claimant did not bid on that Bulletin. Lockwood
received the position from Bulletin No. 624.
The Organization acknowledges that Claimant did not bid on Bulletin
No. 624. It contends that he was not allowed to bid on that position under
the restriction imposed by the Carrier. The Organization further argues that
Claimant fulfilled his obligation to comply first, then grieve, when he bid on
Bulletin No. 621, since that was the same position as Bulletin No. 624 except
for the disputed restriction. In addition, the Organization asserts that it
can grieve the Carrier's posting even if Claimant did not bid on the position,
since it is entitled to contest the disputed restriction.
As to the merits of this Claim, the Organization maintains that this
restriction eliminates 80% of the otherwise eligible bidders for this position, in violation of Rule 15 of the applicable Agreement. It contends that
the Carrier's actions reduce the seniority rights of those employees, and
diminish their overtime opportunities. The Organization further maintains
that the Carrier had not previously required a Carman to hold a wrecking crew
job in order to hold the position of a Carman Cutter-Welder, and that any such
changes must be negotiated with the Organization.
The Carrier contends that this Board must uphold its decision to
dismiss this grievance because Claimant did not bid on Bulletin No. 624. As
to the merits of this Claim, the Carrier maintains that its decision to change
the requirements of the position was the result of sound business judgment
e.g., that Unit 341 is a support vehicle for the wrecker and Mobile Crane, and
that the driver of this vehicle has always been a derrick or rerailing man.
It argues that this Board should not interfere with this decision unless the
Organization provides clear and convincing evidence that the claimed business
reasons are arbitrary or capricious.
This Board agrees with the Carrier that the grievance must be dismissed because Claimant did not bid on Bulletin No. 624. This conclusion is
required by the language of Article 15 of the Agreement, which provides that
"[i)n filling new positions or vacancies in the respective crafts, the oldest
employe in point of seniority bidding on bulletin thereunder shall, if sufficient ability is shown by fair trial, be given preference in filling such positions or vacancies." (Emphasis added). Bidding on the Bulletin is therefore
a contractually agreed-upon prerequisite in order for an employee to be considered for a position.
The Board also finds persuasive the reasoning in Third Division Award
16919, in which that Board dismissed a grievance under similar circumstances.
The Third Division held that:
"The Claimant, upon whose behalf the matter is now
before this Board, never submitted a bid for the
position in question. It is true that he was
recommended to the Carrier as being qualified for
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the position, but the record is devoid of any
evidence that he, himself, ever made proper
application. Despite this, Carrier nevertheless
ruled that he was not qualified for the job.
As we view this case, we need not consider whether
Carrier's adjudication of Claimant's qualification
was arbitrary and capricious, because before we
would take this under consideration, Claimant must
by positive action on his part, have submitted an
application for the position. This is a requisite
condition precedent to be established before we can
consider his merit, ability, qualifications, etc.
Absent this condition, there is simply no case for
the Petitioner.
There are a number of other questions raised by the
Organization throughout this record, all of which
are beyond the substance of the claim itself.
Hence we need not, nor can we address ourselves to
those issues." (Emphasis added)
This Board is not convinced by the arguments advanced by the Organization on this point. Contrary to the Organization, this Board has concluded
that Claimant did not comply first and then grieve. His failure to bid on
Bulletin No. 624 meant that he did not, in fact, "comply" with the contractual
requirement that he bid on the disputed Bulletin. In addition, the Organization's ability to enforce the contract does not fulfill the contractual requirement that the employe awarded the position must be one "bidding on bulletin thereunder..."
This Board also disagrees with the Organization's contention that
Claimant was not allowed to bid. on the position at issue. In point of fact,
by choosing not to bid on Bulletin No. 624, Claimant actually took himself out
of the selection process. He bid on Bulletin No. 621, but not on Bulletin No.
624. The Board agrees with the: Third Division Award quoted above that such
application "is a requisite condition precedent to be established before we
can consider his merit, ability, qualifications etc." Absent this condition,
"there is simply no case for the Petitioner," _Id., especially where the
contract itself clearly requires that the employee must bid on the Bulletin in
order to be awarded the position.
A W A R D
Claim denied.
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NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
ncy Execut ve ecre r~
Dated at Chicago, Illinois, this 11th day of September 1991.