AWARD 2214 INSTANT CASE

1. "Elms had both Division and 1. Mr. St. John has both Shop

system seniority for all positions be- (Division) and system seniority on all

low that of foreman, * * * but no positions below that of foreman, but

seniority as foreman on either a Di- no seniority as foreman in either the

vision or on the system." Shop (Division) or on the system.

2. Mr. Jensen had foreman's 2. Mr. Jensen has foreman's

seniority on the system seniority ros- seniority on the system seniority ros

ter. ter.

A comparison of the questions which the Board found to be at issue in Award 2214 and the questions at issue in the instant case reveals:

1. "We are not called upon to 1. The Board is not called upon say what would be the right of the to say what would be the right of the parties if Elms had seniority as a fore- parties if Mr. St. John had seniority

(c) A system seniority district, composed of all seniority districts on the system, for employes working under the supervision of the Signal Engineer and engaged on larger projects covering installing, removing or the changing of a signal system or a substantial part thereof, will be established."

RULE 56. "Prior to employing new men for new positions or vacancies on seniority districts (a) and (b) such positions shall be bulletined to all employes on the system and assignments will be made, if any, per comparative system seniority ranking.

Assignments to positions on Signal Engineer's seniority district shall be made on a comparative system basis, except employes on their home seniority districts shall be given preference."

RULE 61. "Promotions to positions coming within the scope of this agreement shall be base on ability and seniority; ability being sufficient, seniority shall govern."

RULE 64. "Employes are entitled to promotion to positions covered by this agreement only on the district over which their seniority prevails except that employes of all districts will be given preference in line with their comparative system seniority and over new men on all positions created in seniority districts Rule 40 (c)."

Carrier contends that this matter is not properly here for our consideration because no action was taken by the Brotherhood within 90 days after a decision was rendered by the highest officer designated by the Carrier to handle appeals, as provided in Rule 77 of the effective Agreement.

Rule 77 is as follows:

"After the highest officer designated by the management to handle appeals has rendered his decision, if further action, as permitted by this agreement or the Railway Labor Act, amended, is not taken within ninety (90) days from date the decision is furnished the employe and his representative by such officer, all rights hereunder shall by such failure be forfeited by all parties."

If this rule were here applicable it would control as the decision appealed from was rendered on October 8, 1947 and no further action was taken thereafter by the Brotherhood until August 30, 1948. However, read in conjunction with Rules 73, 74, 75 and 76 under Article VII of the parties' effective Agreement it becomes apparent that Rules 74, 75, 76 and 77 provide a complete procedure for cases coming within Rule 73, that is, disciplinary matters and is not applicable to this type of case.

On the merits Carrier relies primarily on Award 2214 of this Division as an interpretation of the applicable rules of the parties' effective Agreement justifying the action which it has here taken. But the position filled in that award was a system foreman's position under Rule 40 (c) and, as therein held, subject to system seniority under part two of Rule 56. If the position here bulletined came within the class of a system foreman's position then that award would be applicable and controlling, but such is not the situation. The position of Shop Foreman here involved comes within Rule 40 (b) and in the first instance subject to the seniority rights of the men of that seniority district. If no qualified bids were received from men of that district then it would be subject to the first part of Rule 56 and open to all employes of the system on the basis of system seniority. But there being no question as to Claimant's fitness, Rule 61, he was entitled to be assigned to the position on which he bid. See Rule 64. To hold otherwise would make every district position subject to system seniority and destroy the benefits and rights of district seniority.

In view of the foregoing, we find the position of the Brotherhood well taken and that the claim should be allowed.

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

That Carrier violated the Agreement.

AWARD