NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Herbert J. Mesigh, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
ELGIN, JOLIET AND EASTERN RAILWAY COMPANY
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 garage serviceman as advertised
by Gary Division Bulletin No. 3382 to Track Laborer W. M. Hembree,
who was the senior applicant for said position. (System Case No.
SG-9-64 - W M-11-64. )
(2) Track Laborer W. M. Hembree be allowed the difference
between what he was paid at the track laborer's rate and what
he would have received at the garage serviceman's rate had he
properly been awarded the position referred to in Part (1) of this
claim.
EMPLOYES' STATEMENT OF FACTS: The claimant had established
and held seniority as a section (track) laborer within Group 1 of the Track
Sub-Department as of April 23, 1960. He had never established or held seniority in any other group or rank, but he had frequently been temporarily
assigned to work as a roadway machine operator.
Mr. W. R. Findley had established and held seniority as a section (track)
laborer as of May 28, 1964. He did not hold any other seniority within
the Maintenance of Way Department. He was never assigned and usedtemporarily or otherwise-to perform the work of any other group or rank
included therein.
Under date of June 22, 1964, less than a month after Track Laborer
Findley entered its service, the Carrier issued a bulletin reading:
"No. 3382
Joliet, Illinois
June 22, 1964
(Scales & Work Equip. Subdept., Gary Diva.
(Group 2,
Track Subdept., Gary Diva.
To: All Employes (B&B Subdept., Gary Divn.
(All Others, Track Subdept_ Gary Diva.
"CONSIDERATION
Rule 3. Rights accruing to employes under their seniority entitles them to consideration for positions in accordance with their
relative length of service with the railroad as hereinafter provided."
"ASSIGNMENTS
Rule 6.
< s s
(b) Vacancies or new positions, except those of motor car
repairmen (permanent vacancies in motor car repairmen positions
shall be filled in accordance with Memorandum of Understanding of
November 8, 1939, between committees representing Shop Craft
and Maintenance of Way Employes, and the EJ&E Railway Company), in the Scales and Work Equipment sub-department will be
filled first by employes holding seniority in the group and rank in
which the vacancy or new position occurs. If not so filled, they will be
filled by qualified employes in succeeding lower ranks in that subdepartment. In the event the vacancies or new positions are not so
filled by employes in the Scales and Work Equipment sub-department, they will be filled by qualified employes from Group 2 Track
sub-department desiring same or qualified employes desiring same
from the Bridge and Building sub-department and the Track subdepartment in that order before hiring a new employe. Employes
so assigned will retain their seniority rights in the respective other
groups and sub-departments from which taken."
"MAKING PROMOTIONS
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."
"FAILURE TO
QUALIFY
Rule 10. Employes awarded bulletined positions will be allowed
sixty (60) calendar days in which to qualify for such position, and
failing to do so will be so notified within seven (7) calendar days
of the expiration of the sixty (60) day qualifying period, at which
time they will have the right to return to their former positions
without loss of seniority."
(Exhibits not reproduced.)
OPINION OF BOARD:
On June 22, 1964, the Carrier posted Bulletin
No. 3382, advertising position of Garage Serviceman. Bids were received
from one employe besides claimant. Claimant was denied the position as
"not qualified." Carrier assigned the position to a junior Track Laborer
who had bid for the position.
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Carrier's Supervisor Scales and Work Equipment declined the Organization's claim on behalf of Claimant. He stated that in the instant case,
Mr. Hembree failed to attain a passing score when given the "Wonderlic
Mental Ability Test"; therefore, it was determined that he did not have
sufficient ability to be considered for the promotion to the position of Garage
Serviceman.
This dispute is identical in principle with cases covered by our Awards
15002 (Zumas), 15586 (House), 15972, 16107 and 16108 (Mesigh), involving
the same parties, rules, and in substance the same issue. Our findings in
those Awards are dispositive of the issues in the instant dispute, and following the principle of Stare Decisis, we sustain the claim here.
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 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 the Carrier violated the Agreement.
AWARD
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this let day of March 196,8.
Keenan Printing Co., Chicago, ill.
Printed in U.S.A.
16109