NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
EMPLOYES' STATEMENT OF FACTS: G. W. Stevenson, with seniority dating from October 12, 1945 and H. E. McGhee, with seniority dating from May 6, 1946, along with Messrs. J. L. Hooker and W. T. McArthur, were regularly assigned crossing watchmen at Theresa Avenue, St. Louis, Missouri, who provided crossing protection at that point for twenty-four. (24) hours per day, seven days per week. Effective July 12, 1966, crossing protection at this point was reduced to ten (10) hours (from 7:30 A.M. to 6;30 P.M.) per day and to five (6) days per week (Mondays through Fridays). The crossing was closed to traffic during "non-protected hours" by keeping the crossing gates lowered from the end of one tour of duty until the beginning of the subsequent tour of duty.
This reduction in crossing protection at Theresa Avenue resulted in the elimination of three positions of crossing watchmen and, shortly before the change was placed into effect, a notice was posted in the crossing watchmen's cabin at Theresa Avenue that
OPINION OF BOARD: Prior to July 16, 1966, the subject crossing was open to vehicular traffic twenty-four hours per day, seven days per week, thus requiring four watchmen positions.
Subsequent to that date, the Missouri Public Service Commission ordered the crossing to be gated and locked against vehicular traffic except between the hours of 7:30 A.M. and 6:30 P.M. on regular week-days thereby reducing the number of watchmen positions needed to only one,
One of the occupants of the four watchmen positions previously required was selected to fill the existing position. Claimant, one of such occupants, was passed over by Carrier in its selection.
Claimant contends that because he was senior to the watchman selected, Carrier violated Article 3-Rule 10 of the Agreement which provides:
"The general rule of promotion and seniority will not apply to positions of track, bridge and highway crossing watchmen and signalmen at railway (non-interlocked) crossings, but such positions will be filled by employes taken from the ranks of employees covered by this agreement or covered by other agreements between the Railway and Brotherhood of Maintenance of Way Employes. Preference in filling and retaining these positions will be given to incapacitated employes determined by the degree to which incapacitated for other work, seniority in the service of the railway and ability to perform the work ...."
However, a reading of the rule clearly reveals that to prove a prima facie case establishing a violation, Claimant must first prove that he was more incapacitated for other work than the watchman selected by Carrier. Since Claimant has failed to prove this element of his case, the claim must be and is 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