NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Under date of April 8, 1955, the Carrier issued Bulletin No. 494, advertising the position of Extra Gang Foreman.
On April 17, 1955, Section Foreman Walter Osten, who holds seniority as such from July 30, 1938, placed his application for the above referred to position.
On May 9, 1955, the Carrier issued Bulletin No. 500, assigning Mr. J. P. Waigand, who holds seniority as Section Foreman from March 9, 1943, to the position of Extra Gang Foreman as advertised in Bulletin No. 494.
Claim was filed in behalf of Section Foreman Osten requesting that he be allowed the difference between what he received at the Section Foreman's rate and what he should have received at the Extra Gang Foreman's rate had he been properly awarded and assigned to the above referred to position of Extra Gang Foreman.
The Agreement in effect between the two parties to this dispute dated April 15, 1940, together with supplements, amendments, and interpretations thereto are by reference made a part of this Statement of Facts.
The foregoing Awards were summed up in Award 6829 as amounting to a general rule, in this language:
The Carrier affirmatively states there is nothing in the current Maintenance of Way Agreement which abrogates the Carrier's right to determine the ability of any employe who has made application for an assignment. Conceivably it could be contended that under Rule 7 reading:
an employe will be given an opportunity to qualify for promotion, however, the instant case involves assignment, not promotion, and obviously a discussion of Rule 7 is not pertinent in this case.
In view of the circumstances in this case, the language of Rule 6 (d) and the numerous Awards of this Division which recognize the Carrier's exclusive right to judge the ability of an employe, claim should be denied.
OPINION OF BOARD: The Claimant is regularly assigned as a Section Foreman for the Carrier. In April of 1955 the Carrier advertised a position of Extra Gang Foreman. Claimant was one of three bidders for the position and was the Senior man. The Carrier, however, awarded the position to the second senior man on the list. As a result of this action a grievance was filed. The claim was properly processed and denied at all steps and was finally processed to this Division for adjudication.
The principal sections of the agreement which it is alleged were violated are Rule 6(d) and Rule 7 which provide:
The contention of the Organization is that inasmuch as the Claimant had seniority over the successful bidder and that he was qualified, he should have been awarded the position. 10072-10 236
The Carrier, on the other hand, while admitting that the Claimant had seniority, contends that he has never worked as an extra gang foreman prior to his bidding on this position and that in the judgment of management he was not qualified to perform the duties.
In answer to this the Organization has raised the issue that under Rule 4, "Section and Extra Gang Foremen" are classified as the same.
The Carrier also contends that Rule 7 is only applicable to promotions and this was not a promotion.
In light of the manner in which Rule 6(d) is worded wherein it provides that "ability being sufficient in the judgment of the management, seniority shall prevail" (emphasis ours), this Division's power to set aside a decision of management is even more limited than under some of the agreements found involving other Carriers. See Award 7369, 9818. Furthermore, this Division has been loathe to set aside a decision unless management's action is shown to be arbitrary and capricious. Awards 8196, 596,6. By such terms, of course, it is not meant that only upon a showing of bad faith will this Division act. A failure to follow the mandate of the Agreement for whatever reason would be arbitrary and capricious.
The Organization's other contention is that Rule 7 required the Carrier to give the Claimant a fair chance to demonstrate his ability and that failure to comply with this Rule also was a violation of the Agreement. The Organization has cited among other Awards No. 105 and 8051. An analysis of those cases and the agreement in question militates against this position. While Rule 6(d) talks of promotions and assignments, Rule 7 only talks of promotions. (Emphasis ours.) This being so it is the judgment of this Division that this was an assignment as envisaged by the drafters of this Agreement and therefore Rule 7 is inapplicable.
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 Employe involved in this dispute are respectively Carrier and Employe 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