NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Railway Clerks that:
(1) The Carrier violated the Clerks' Memorandum of Agreement dated November 4, 1942 modifying Rule 16 of the Clerks' Agreement by failing to recognize a bid for a vacancy of File Clerk in the Office of the Assistant General Freight Agent, Cleveland, Ohio, which bid was submitted by John F. Conroy, a Class 1 employe employed in the office of Superintendent of Passenger Transportation at Cleveland, Ohio, with a seniority dating of August 7, 1922 -said Carrier awarding the position to John F. Jesse, who had not submitted any bid for the vacancy and who is a junior employe, employed as Yard Clerk at Elyria, Ohio, with a seniority dating of January 26, 1943.
(2) The Carrier now be required to comply with the Clerks' Modified Rule 16 by assigning John F. Conroy to the vacancy of File Clerk for which he had bid at the time said position was bulletined.
EMPLOYES' STATEMENT OF FACTS: Under date of August 25th, 1944, a vacancy of File Clerk was bulletined in the Office of the Assistant General Freight Agent at Cleveland, Ohio, which bulletin expired August 31st, 1944.
No bids were received for this vacancy from the regular forces of that office, but a bid dated August 25th was filed with Mr. R. H. Doutt, Assistant General Freight Agent, by Mr. John Conroy, an employe in the Superintendent of Passenger Transportation's Office for the vacancy under the provisions of our Modified Rule 16.
When the time limit of the bulletin expired, Mr. Doutt failed to acknowledge, decline, or consider Mr. Conroy's bid and the vacancy was assigned to Mr. John F. Jesse from Elyria, Ohio, who had not filed any bid for said vacancy during the period of time the vacancy was advertised by bulletin.
Conferences were held with Mr. Doutt, Assistant General Freight Agent, on October 9th 1944, with Mr. W. D. McVey, General Freight Agent on appeal from Mr. Doutt's decision under date of December 1st 1944 and a final appeal to Mr. J. E. Anderson, Freight Traffic Manager, under date of March 6th, 1945, which appeals resulted in their denial of our claim and therefore left us no alternative other than to submit our claim to the Third Division of the National Railroad Adjustment Board for adjudication.
with seniority rights in another district and in the penultimate paragraph of the "Opinion of Board" said-
In Award 2350, Clerks vs. Union Railway Co.; the Third Division with Edward F. Carter as Referee denied the claim of a clerk subject to the agreement for a position which had been awarded to an employe outside the scope of the agreement, and, in the "Opinion of Board", said in part-
An almost endless number of other awards might be referred to in further support of the carrier's position in this case, which, in brief, is that the supervisor in charge who is familiar with the experience and qualifications of applicants must be the judge in determining the fitness and ability of an employe who aspires to a particular position.
OPINION OF BOARD: On August 25, 1944, the Carrier bulletined a position of File Clerk in the office of Assistant General Freight Agent, which bulletin expired on August 31, 1944. No employes in that seniority district bid for the position. On August 25, 1944, Claimant, an employe occupying a position in another seniority district, made application for the position. On August 20, 1944, John F. Jesse, an employe occupying a position in another seniority district, made application for the position. Jesse, though junior to Claimant in seniority, was assigned the position. Claimant contends that this handling was in violation of Rule 16 of the current Agreement as revised effective October 6, 1942. This rule as revised provides:
The position was correctly bulletined in the seniority district where the position was located for the five day period required by the rules. No employe of that seniority district placed a bid. Consequently, applicants for the position from other seniority districts were entitled to preference, if qualified, over non-employes. In selecting a qualified employe from another seniority 3278-16 601
district, seniority need not be respected under the cited rule. If an applicant from another seniority district is qualified, the Carrier may assign him the position irrespective of seniority or superior qualifications on the part of other applicants from other seniority districts. The Carrier found Jesse to be qualified. This being true, he could properly be assigned the position under revised Rule 16, and no other employe can have any legitimate cause for complaint, no matter how great his seniority or how superior his qualifications.
It is urged, however, that Jesse's application was not subject to consideration because it was not made during the period the bulletin was required to be advertised. The rule does not so state. The bulletin was required to be advertised only in the seniority district where the position was located. It is effective, therefore, only as to the employes of that seniority district. Under the rule as written, no employe in the seniority district where the position was required to be bulletined having placed a bid, the Carrier can properly consider any application before it from another seniority district, no matter when it was filed. In fact, it is bound to do so before filling the position with a non-employe. Such being the case, there is no basis for an affirmative award.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and