STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to assign the position of track foreman as advertised by Gary Division Bulletin No. 3234 to Track Laborer A. Papadopoulos and assigned the position to junior Track Laborer M. Gutierrez. (System Case TG-863) (Carrier's File No. VM-15-63).
(2) Claimant A. Papadopoulos be awarded the position of track foreman, with a seniority date in that class as of the date of Gary Division Bulletin No. 3234-A.
EMPLOYES' STATEMENT OF FACTS: The Carrier issued Gary Division Bulletin No. 3234 advertising a position of Track Foreman.
Claimant A. Papadopoulos, who holds seniority as a Track Laborer from June 22, 1955, placed his application for the aforesaid position.
The Carrier subsequently issued Gary Division Bulletin No. 3234-A, assigning Mr. M. Gutierrez, who holds seniority as Track Laborer from June 4, 1957, to the position of Track Foreman as advertised in Gary Division Bulletin No. 3234.
The Agreement in effect between the two parties to this dispute dated August 1, 1952, together with supplements, amendments, and interpretations thereto, is, by reference, made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: In recent years, the Organization has been endeavoring to have the Carrier interpret and apply Rule 8 as though it was strictly a seniority promotion rule. At the same time, the Organization has been endeavoring to limit and water down the principles in its Agreement which require an employe to express his desire for further advancement and/or promotion and to exhaust and make maximum use of
"Rule 8. Promotion shall be based on ability, merit, and seniority. Ability and merit being sufficient, seniority shall prevail, management to be the judge of ability and merit, subject to appeal."
"Rule 12. (g) An employe bidding for and who is awarded a position in a lower rank will forfeit his seniority in all ranks higher than the one in which he takes service."
"Rule 12. (i) An employe promoted from a lower to higher rank will rank above an employe declining promotion. An employe accepting promotion will have priority in consideration for further promotion."
OPINION OF BOARD: Two employees submitted bids for a Relief Track Foreman's position which was subsequently awarded to the junior employe. Thereafter, the Organization filed the instant claim on behalf a the senior employe, the Claimant herein. At time of the bid, both employes were Section Laborers in the Track Sub-Department, with the Claimant holding greater seniority.
The Carrier declined the instant claim on the grounds that the seniority factor was not the sole criterion, as the Organization appears to contend. Rather, it must be considered in conjunction with ability and merit, as prescribed by the various rules of the effective Agreement.
The Organization supports its position by citing Rules 2, 3 and 4, as being applicable herein. On the other hand, the Carrier argues that the above rules could only be interpreted in the manner urged by the Organization, if a part of each of the above rules was omitted-namely, in Rule 2-"Except as otherwise provided in this rule;" in Rule 3-"as hereinafter provided;" and in Rule 4-"except as otherwise provided herein." Therefore, the Carrier stresses that the aforementioned rules contemplate that other rules are required to be considered in connection therewith-namely, Rules 6 (a), 8, 12 (g) and 12 (i).
The pertinent portions of the various rules in question are hereinafter quoted:
It appears that a careful analysis of the various rules referred to by the parties require us to conclude that the Carrier's contentions are meritorious. Rules 6 (a) and 8 cannot be isolated from our consideration. These rules explicitly provide that promotion shall be based on ability, merit and seniority. However, the seniority factor is considered only after the first two factors, -ability and merit-are determined to be sufficient. We would also mention that the rule expressly grants management the right to judge ability and merit.
We are mindful of the vigorous attitude and vicarious tenacity exhibited by Organizations wherever the issue of seniority is involved. However, in the instant dispute, prior elements are required to be considered before the seniority factor is reached, hence, we are not privileged to exclude those other factors. Inasmuch as the parties have seen fit to negotiate a modified seniority clause in their effective Agreement, we are prohibited from substituting our predilections for that of the parties. In the absence of a demonstrated abuse of judgment by .the Carrier, this Board is required to accept management's decision that the senior employe did not possess sufficient ability and merit.
The Carrier, furthermore, has abundantly buttressed its position with respect to the issue of qualifications. Included in the record is substantial
documentation that the junior employe was selected only after serious consideration of the requisite factors. Consequently, in the absence of credible proof by the Organization that the Carrier exercised such judgment arbitrarily or capriciously, it is our considered opinion that the claim should be denied.
FINDINGS: The Third Division of the Adjustment Board, 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