employes had bid from one position to another. However, service as such did not establish any seniority for Mr. Wright as the appointment was only temporary.

At the time that Signal Helper Tonnesson was appointed to position of signal mechanic, he was the only qualified employe available, he having established his ability in the mechanics' class during period of employment from November 1942 through September 1946 when he was permanently assigned to that type of work.

A qualified employe was available who could do the work properly and under such circumstances Rule 32 (c) does not provide for promoting assistant mechanics to mechanics. The work performed by Tonnesson had established him as a capable and satisfactory mechanic and he was therefore appointed because of this ability.

Carrier would call attention of the Board to part (a) of the Employes' claim. When this claim was progressed through channels it was officially denied on March 28, 1949 by Carrier's highest officer designated to handle same. On March 31, 1949 Employes requested that Carrier join with them in making a joint submission to the Adjustment Board. On April 1, 1949 Carrier advised Employes that it did not wish to join with the Organization in submitting this claim to the National Railroad Adjustment Board. Nothing more was heard from the Organization in connection with this claim until a copy of letter dated August 22, 1951, addressed to Mr. A. I. Tummon, Acting Secretary-Third Division, was received. It will be noted that the Employes have taken no action on this case from April 1, 1949 until August 22, 1951, yet this claim is for the amount he would have earned at the mechanic's rate from July 1, 1948. Carrier does not believe it should be presented with a retroactive claim whereon the employes have taken no action in over two years.

The only rule in the agreement having to do with promotion to position of signal mechanic before completing four (4) years as an assistant is Rule 32 (c), quoted on Page 4. It will be noted that Rule 32 (c) states "an

employe may be promoted-if-he has qualified in less than 4 years to perform the work, provided a qualified and satisfactory signal mechanic -is not available-". (Emphasis added.)

Signal Helper Wright was not entitled to promotion for several reasons. A qualified and satisfactory Signal Mechanic was available. Signal Helper Wright had not completed 4 years' service as an assistant and was not qualified for signal mechanic's position. In fact, he had been in service less than a year and had been employed most of the time as a helper with a short period as temporary assistant mechanic and mechanic. He did not establish seniority as assistant mechanic until July 28, 1948 and was subsequently promoted to signal mechanic on November 8, 1950.

Under the existing facts, Signal Helper Wright was clearly not entitled to promotion under Rule 32 (c), the only rule in the agreement which has a bearing on this claim.

Management affirmatively states that all matters referred to in the foregoing have been discussed with the Committee and made a part of the particular question in dispute.

OPINION OF BOARD: About the essential facts relevant to g determination of this dispute there appears to be no disagreement between the parties: (1) One June 4, 1948, the Carrier bulletined three signal mechanic positions. (2) As of this date among the signal mechanic helpers there were two employes, Claimant Wright and J. J. Tonnesson, the former being senior to the latter in that class. (3) Wright, holding seniority as a helper from August 25, 1947, has had the following work experience with the Carrier: employment for 14 days as a temporary assistant signal main-

tamer, beginning February 1, 1948; employment for about three months as a temporary assistant signal mechanic, beginning April 12, 1948; employment for nine days as a temporary signal mechanic, beginning June 21, 1948; promotion to a permanent assistant signal mechanic position July 28, 1948; and promotion to a permanent signal mechanic position November 8 1950. (4) Tonnesson had been a signal mechanic from 1942 to 1946 but had resigned in September, 1946, to work elsewhere. Subsequently, on March 31, 1948, he was rehired by the Carrier as a signal mechanic helper and was in that position when the above-mentioned signal mechanic positions were bulletined. (5) Wright applied for one of these mechanic positions; Tonnesson did not. (6) The Carrier, without dispute, awarded one of these positions to A. G. Frohrib. A second of the positions was given to Tonnesson. The third was cancelled.

Two main issues separate the Parties: (1) which rule or rules of their effective agreement applies to and governs the resolution of the claim? The Organization stresses Rule 60 (a) of Article 5 on promotions and transfers, which states that in assigning positions other than foremanships the Carrier shall consider seniority and ability; and, ability being sufficient, seniority shall govern. The Carrier emphasizes Rule 32 (c) of Article 3 on assistant positions, which states that "an employe" (presumably in an assistant's position) may be promoted to a signal mechanic vacancy if he has qualified therefor in less than four years, provided a qualified, satisfactory signal mechanic is not available at the time. (2) If Rule 60 (a) is the chiefly applicable portion of the Agreement, was the Carrier's action proper thereunder?

In respect to the first issue, we think that Rule 60 (a) rather than Rule 32 (c) is controlling. Wright and Tonnesson were classified as helpers when the positions were bulletined. Rule 32 is part of an Article dealing with assistantships, not with helpers; and paragraph (c) must be interpreted as covering promotions from assistant to mechanic positions. Rule 60 (a) on the other hand, is part of an Article dealing with the general subject of promotions and must be presumed to cover all advancements of the sort at issue in the instant case.

The second question then becomes important. At basic issue is whether Claimant Wright's ability to perform the work of signal mechanic on July 1, 1948, was "sufficient". Here, as this Board has often held, the burden of proof rests on the Organization. The responsibility for determining sufficiency of ability lies with the Carrier's management, and the Organization is obligated to show that the Carrier's exercise of its responsibility was improper.

This, we believe, the Organization has succeeded in doing. It may well be that as of July 1, 1948, Tonnesson was a better qualified employe for the position of signal mechanic than was Wright. But under the rules of the Agreement the Carrier is not permitted to exercise its discretion by selecting the superior among two or more qualified persons. So long as the senior employe's ability is adequate, he must be chosen. The facts of Wright's temporary employment in higher-rated positions and his subsequent promotion to such positions strongly suggest sufficient competence and tend to substantiate the Organization's contention. We think the Carrier violated the applicable provisions of the agreement in promoting Tonnesson instead of Wright.

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:

AWARD

Claim (a) and (b) sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division