Award No. 17848
Docket No. MW-18449
NATIONAL RAILROAD ADJUSTMENT 190AW)
THIRD DIVISION
David Dolnick, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES
SEABOARD COASTLINE RAILROAD COMPANY
STATEMENT OF CLAIM:
(1) The Carrier violated the Agreement when it failed and refused to
assign the position of steel bridge gang foreman as advertised by
Bulletin No. 479 to Steel Bridge Mechanic
C.
M. Coppedge, who was
the senior applicant for said position. (System File C 4 C. M.
Coppedge /M-49).
(2) Steel Bridge Mechanic C. M. Coppedge now be assigned to the
aforesaid position of steel bridge foreman and be allowed the difference between what he was paid at the steel bridge mechanic's rate
and what he would have received at the steel bridge gang foreman's
rate had he properly been awarded the position referred to in Part
(1) of this claim.
(3) The seniority roster maintained for System steel bridge forces be
adjusted so as to reflect the same information as would have been
shown had the assignment here in dispute been properly made.
EMPLOYES' STATEMENT OF FACTS: The claimant holds seniority
within the System Steel Bridge Subdepartment as a steel bridge mechanic
helper from July 7, 1942 and as a steel bridge mechanic from
December 20, 1942. Mr. B. M. Hendricks holds seniority within said
sub-department as a steel bridge mechanic helper from September 16, 1948
and as a steel bridge mchanic from October 1$, 1960. Neither employe has
acquired seniority as a steel bridge gang foreman.
The Carrier issued Bulletin No. 479, advertising a permanent position of
steel bridge gang foreman, which reads:
"SEABOARD COAST LINE RAILROAD COMPANY
ENGINEER OF BRIDGES
BULLETIN N0. 479
Jacksonville, Fla., Jail. 2,1968
58556
The following position is bulletined for bids, applications for which
will be received from Jan. 5, 1968, to Jan. 15, 1968:
junior Steel Bridge Mechanic Hendricks being awarded the position of
Foreman on Steel Bridge Force No. 4 on January 22, 1908.
"You did not present anything new in support of the claim and it
was pointed out to you that the record in this case fully supported the
action of the Carrier. Therefore, you were advised there was no reason
for changing our decision of December 10th."
Rule 2(b) of the applicable agreement provides:
"Appointments to new positions, or to fill vacancies, other than
laborers, will be made after bulletin notice has been posted for a period
of ten (10) days at the headquarters of the employees entitled to consideration, during which time employees may file applications with the
official whose name appears on the bulletin. Appointment will be made
before the expiration of fifteen (15) days frome date of bulletin. Ability
and merit being sufficient, seniority shall prevail in the appointment"
(EXHIBITS NOT REPRODUCED)
OPINION OF BOARD: The claim herein is that Claimant, a steel bridge
mechanic, should have been assigned to a bulletined position of Foreman, Steel
Bridge Gang No. 4, which position was awarded to a junior steel bridge
mechanic.
Rule 2(b) of the applicable Agreement reads:
"(b) Appointments to new positions, or to fill vacancies, other than
laborers, will be made after bulletin notice has been posted for a period
of ten (10) days at the headquarters of the employees entitled to consideration, during which time employees may file applications with the
official whose name appears on the bulletin. Appointment will be made
before the expiration of fifteen (15) days from the date of bulletin. Ability
and merit being sufficient, seniority shall prevail in the appointment"
The Carrier contends that Claimant lacked sufficient ability and merit
for the position sought.
In numerous Awards of this Board, in construing rules similar to Rule
2(b) here involved, we have adhered to the principle that the Carrier's determination of ability and merit will not be disturbed unless it is shown that
the Carrier acted arbitrarily, capriciously or in bad faith. A careful study
of the entire record fails to show that the Carrier's action in this particular
case was arbitrary or capricious. The claim will, therefore, be denied.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was not violated.
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AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: S. H. SCHULTY
Executive Secretary
Dated at Chicago, Illinois, this 30th day of April 1970.
Central Publishing Co., Indianapolis, Ind. 48206 Printed in U.S.A.
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