Third Division
Paul Samuell, Referee
DISPBTL-" Claim of D. J. Speier dated December 27, 1932, that he should have been assigned to position of Chief Clerk to the Assistant Superintendent at Pasco and that he be paid the difference in rate as between position lie is occupying and position denied him from (late of claim."
FINDINGS.-The Third Division of tire Adjustment Board, Mann the whole record and all the evidence, rinds that:
The carrier attd the employees involved in this dispute are respectively carrier and employee within the meanbig of the Railwa7- Litbol Act as approves1 June 21, 1934.
This Division of the Adjustment Board lets jurisdiction over the dispute involved herein.
The parties to sold dispute wore given due notice of hearing thereon.This dispute bell,,, deadlocked, Paul Salnuell was called !it it, Referee to sit with this Division.
The following statement of facts is jointly certified by the parties, and the Third Division so finds:
"The Pasco Division was abolished effective December 18. 1932. The division offices formerly located at that place were discontinued. An assistant superintendent was assigned at Pasco. Position of Chief Clerk to the Assistant Superintendent, basic rate of $6.60 per day, was created and this position was bulletined to employees ml the Operaling Division. Mr. S. D. Douglas, who prior to December 18. 1932. was Chief Clerk to the Superintendent, and Mr. D. .I. Sprier, whit ]odor to Decelllber 18. 1932, was Clerk to Trainmaster at Pasco, made application for the positiat of Chief Clerk to tire Assistant Superintendent. Mr. Sprier was senior to Mr. Douglas. Mr. Douglas was awarded the position. Th(· ixtsitiou of Chief Clerk to Assistant Superintendent is coveted by Rule 5 (b) reading as follows:
"' Rot.a 5 (b). The positions of Chief Clerk to Master Mechanic, Chief Clerk to Assistant Superintendent, Chief Clerk to Trainmaster, Chief Clerk and Cashier in the following freight offices: Duluth, St. Paul, Itfinneapolls, Tacoma, and Seattle; cashier in freight office at Billings, Butte, and Spokane, shall be subject to all the rules of this agreement except that promotion to these positions shall be: Merit and ability being equal the senior applicant will be awarded the position, the appointing officer to be the judge (subject to appeal)."'
An agreement bearing effective date of August 1;~, 1922, exists between the parties, and employees rely upon the following rules thereof to sustain their claim
"RULR 3. Penioitp datata.-Seltiority begins at the time eloploye's pay starts on the seniority district and in the class to which assigned.
Where two or more employes enter upon their duties at the same hour on the same day, employing officer shall at that time designate respective rank of such employes and advise tile employes affected."
"RoLe 4. Clerical dating.-Elmployes will rank as clerks front date assigned to clerical positions."
"Rmm 8. (b) Tile positions of Chief Clerk to Master Mechanic, Chief Clerk to Assistant Superintendent, Chief Clerk to Trainmaster, Chief Clerk and Cashier in the following freight offices: Duluth, St. Paul, dlinueapolis,
Complainant Employee Speier was assigned to position of Chief Clerk to the Assistant Superintendent at Pasco on December 18, 1934, vice employee Douglas promoted, thereby terminating claim made subject of dispute as of December 18, 1934.
The disputants agree that the question for this Board to determine in this dispute is, "Did Mr. D. J. Speier, on December 18, 1932 (date assignment was made), have equal merit with Mr. S. D. Douglas for the position of Chief Clerk to the Assistant Superintendent at Pasco?"
Rule 5 (b) places the responsibility upon the carrier to determine the issue of merit where more than one employee seeks a position. In other words, the agreement reserves unto the appointing officer the right to be the judge subject to appeal. We stated in the previous case, CL-124, "This Division should be reluctant to interfere with the decision so made by the carrier so long as it acts in good faith, is without bias or prejudice, and indicates no disposition to purposely or carelessly evade or disrespect the rules as well as the spirit and intention thereof ", and we are of the opinion that the language applies in this dispute.
The question of merit of the two applicants is largely discretionary with the appointing officer. In this dispute we concede that such officer might have properly decided that petitioner Speier be selected, while on the other hand, we cannot say that the officer abused any right in deciding that Douglas had more merit than Speier.
This dispute is not one of principle but one of fact, and we are not disposed to substitute our opinion for that of the appointing officer with the present record before us.