NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5924) that:
EMPLOYES' STATEMENT OF FACTS: The seniority date of Mr. Harold L. Cox in the Auditor of Revenues Department of The Kansas City Southern Railway Company, Kansas City, Missouri, in Group 1 is February 2, 1960. The seniority date of Mr. G. J. Bakker, in the same department, group and location, is March 8, 1963,
On December 13, 1963, Mr. R. H. Booth, Auditor of Revenues, issued bulletin abolishing position of Revising Clerk No. 4, occupied by Mr. Harold L. Cox, effective termination of assignment December 20, 1963. Mr. Cox, on December 16, 1963, wrote Mr. Booth, advising he wished to exercise his seniority right by displacing Mr. G. J. Bakker, Revising Clerk No. 2, daily rate $22.73, effective 8:00 A. M., December 23, 1963 (Employes' Exhibit No 1). On December 18, 1963, Mr. Booth, under File PR-766, wrote Mr. Cox, advising him that his entire experience in his office had been with grain tariffs, refused to allow him to exercise his seniority rights on the position he desired, and advised him he would allow his to place himself on Division Clerk No. 1 or Division 'Clerk No. 2, both positions carrying a daily rate of $22.34 per day (Employes' Exhibit No. 2). Mr. Cox then exercised his seniority rights on Division Clerk No. 1, daily rate $22.34, under protest, and was allowed to displace the occupant of that position effective December 23, 1963 (Employes' Exhibit No. 3).
You will recall that bid was entered by you for the position of Revising Clerk No. 2, my Bulletin A-15 of November 22, 1963,. and in response to your letter of December 5, 1963, making inquiry as. to my reasons for not assigning you to that position, I outlined fully, why I did not consider you qualified to hold the position of Revising Clerk No. 2.
The conditions have not changed since then, so I must refuse to permit you to exercise your seniority rights on the position of Revising Clerk No. 2.
As pointed out previously, your entire experience in my office has been with grain tariffs and since there are two positions in the Recheck Department handling grain rates and divisions, Division Clerk No. 1 and Division Clerk No. 5, being bulletined today, both of which carry rates of $22.34 daily, I am willing to let you exercise your rights on either of these positions if you desire.
Please advise we immediately what you wish to do so that the other interested employes may protect their rights.
On December 23, 1963, Claimant exercised his seniority to position of Division Clerk No. 1.
OPINION OF BOARD: On November 22, 1963, Claimant made application for the position of Revising Clerk No. 2. The application was declined and by letter of December 1963, from Carrier's representative, Claimant was advised that he was not qualified to fill the position and the reasons for such decision were set forth. No appeal was taken by Claimant from this decision. Subsequently, on December 13, 1963, Claimant was notified that his position of Revising Clerk No. 4 would be abolished at the close of the assignment on December 20, 1963. On December 16, 1963, Claimant advised Carrier that he desired to exercise his seniority and displace the occupant of the position Revising Clerk No. 2 (the same position he had attempted to obtain when it. was previously bulletined). Claimant was refused permission to exercise his. seniority right on this position for the same reasons that had been theretofore outlined to him by the Carrier. However, Claimant was given the opportunity of exercising his seniority right on the positions of Division Clerk No. 1 or Division Clerk No. 5. He did exercise his seniority right on the position of Division Clerk No. 1 (under protest) and was allowed to displace the occupant. of that position.
Rule 14(a) of the Agreement has no application to the present situation, for it provides that: "Employes awarded bulletined positions will be allowed' thirty (30) days in which to qualify . . ." What we are faced with is an attempt by a senior employe to displace one junior to him and Rule 7(a) applies:
The same question which we are involved with here arose on the same property between the same parties in Award 11941, Dorsey, in which it was held:
In accordance with this precedent on the property, the burden of proof was with the Claimant and he did not meet it. Consequently, the claim must 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