(Brotherhood


              PARTIES TO DISPUTE, of Maintenance of Way Employee

              (The Atchison, Topeka and Santa Fe Railway company

                          ( - Coast Lines -


I
              STATEMENT OF CLAIM; Claim of the System Committee of the Brotherhood that:


              (1) The Carrier violated the Agreement when it assigned Painter Jack N, Malone instead of Painter F, E. Myers to relieve Paint Foreman Anderson during the period extending from July 14 to August 15, 1969 inclusive (System File 13082-1). ..


                    (2) Painter F. E, Myera be allowed the difference between what he

              have been paid at the paint foreman'e rata and would

              rate of what he was paid at the painter's

                    pay because of the violation referred to within Part (1) of this claim.


I
 OPINION OF On May 19~ 1969 Painter F. E. Myers, the Claimant, made written
 application to S. Rogers, Superintendent of the Atchison, To
 peka and Santa Fe Railway for promotion to the position of B&B paint foreman on the
 old San Francisco Terminal Division Seniority Division.

              Mr. Myer's seniority date of position is July 27, 1947. He worked as relief paint foreman beginning in 1949 to October 1955.


              Mr. Anderson, the regularly assigned San Francisco Terminal Division paint foreman went on vacation July 14 through August 8, 1969 inclusive. Moreover, he was granted a requested leave of absence of one week which prolonged his absence to August 15, 1969.


              Although Claimant applied for promotion to the paint foreman's class, Carrier chose Junior Painter Jack Malone to relieve Foreman Anderson during the latter's absence.


              The Organization submits that Carrier was in violation of the agreement and calls our attention to the following allegations: foreman July 1Mr.1969Myers is senior to Jack Malone, who was promoted to paint


              2· Mr. Myers signified his desire for promotion in writing to the Superintendent with a copy to the Division chairman.


              of 3' Mr. Myers once passed oral and

              paint foreman, written examinations for the position

                                                  0


                    Award Number 19499 page 2

                    Docket Number MW-19439


4. Mr. Myers demonstrated his ability to perform work in the higher class (paint foreman) during the period 1949 to October 1955.

 5. Section 1 of Article III of the Agreement provides that when fitness and ability are sufficient s
The evidence in the record is in sharp conflict as to whether the performance of the Claimant in the had demonstrated the fitness and ability to be promoted to paint foreman. Moreover, the exami
In view of the aforementioned'conflict, and the belief of the Board that Claimant did not prove he was qualified for promotion at the time this claim arose, we are unwilling to interfere with the judgment of the Carrier.

        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 ,Tune 21, 1934; 1

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                        A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: Or'
        Executive Secret


        Dated at Chicago, Illinois, this 17th day of November 1972.