(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE:

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

 1. The Carrier violated the Agreement when, on November 2, 1970, it required or permitted D. 0, Tucker, B&B Foreman, to leave his B&B Foreman's position on Seniority District No. 6, Gang 725, and place himself an B&B Gang 727, Seniority District No. 4.

 2. The Carrier further violated the Agreement when, on November 4, 1970, it required B&B Lead Mechanic H. B. Cooley, Gang 727, Seniority District No. 4, to place himself on Seniority District No. 6 as B&B Foreman on Gang 725.











OPINION OF BOARD: On November 1, 1970, a vacancy was created for the posi
 tion of Foreman on B&B Gang No. 727, Seniority District
 No. 4 by the transfer of the incumbent to another department. There were no
 other employees with seniority in the foreman's classification on Seniority
 District No. 4. D. 0. Tucker, Foreman of B&B Gang No. 725, Seniority District
 No. 6, requested temporary assignment to the vacant position during the posting
 period and was granted a thirty day leave of absence from his position of B&B
 Gang No. 725 Foreman for this purpose. On November 4th, the vacant position
 on 8&B Gang No. 727 was advertised, and at the close of the bidding on November
 13th no bids had been received from any employe with seniority in the Foreman's
 classification. Tucker requested the vacant position and by Bulletin was assigned
 to the position on November 16th giving up his seniority in District No, 6 at
 that time.

 When Tucker moved to B&B Gang No. 727 a vacancy was created for the position of Foreman on Gang No. 725 in Seniority District No. 6. There were no employees with seniority as Foreman in District No. 6. On November 4th, at hir request, H. B, Cooley, Lead Mechanic in B&B Gang No. 727, who had served as a Relief Foreman, was temporarily assigned to the position .off Foreman, B&B-Gang 1' (Seniority District No. 6). On November 19, 1970 the vacancy for Foreman, B&B Gang No. 725, was advertised and on December 1st when the bids closed there were no bids from any employe with seniority in the Foreman's classification on Seniority District No. 6. December 7, 1970) from B&B Lead Mechanic, District No. 4 to B68 Foreman, District No. 6, relinquishing his seniority in District No. 4.

 Claimants in this matter are P. E. Lambert, B&B Mechanic, Gang 727, District No. 4 and I. L. Boatman, B&B Lead Mechanic, Gang 725, District No. 6.

 Both parties agree with the above statement of facts, except that Petitioner contends that Tucker and Cooley were required to accept the temporary transfer and then the ultimate assignments. However, no evidence has been submitted in support of Pe evidence in support of its position; therefore we shall reject Petitioners contention.

        The pertinent Rules include the following:


        "ARTICLE 3. SENIORITY


        Rule 1. Seniority begins at time employe's pay starts in the respective branch or class of service in which employed, transferred or promoted and when reg Empicyos are entitled to consideration for positions in accordance with their seniority ranking as p rules.

            Award Number 19707 Page 3

            Docket Number MW-19601


"Rule 2. Seniority rights of the following gangs and employee will extend over the entire system.

        Steel Bridge Gangs

        Welding Gangs

        Pile Driver Gangs

        Steam Shovel Gangs

        Ditcher Gangs

        Spreader-Shaper Gangs

        Bulldozer Operators

        Pole Driver Operators

        Crawler Crane Operators

        Rail Derrick Operators

        Rail Straightening Foremen

        Dragline Operators


Ditcher - Pile Driver Operators)
 (Western Sub-Division)* Ditcher - Pile Driver Fireman )

 (*) It is understood that if this equipment is to be used at other points on the System the position will be advertised to System Ditcher Operators and Firemen if ditching service is to be performed, and to System Pile Driver Operators and Firemen if pile driving work is to be perfo understood that in emergencies the Operator assigned to this equipment on Western Sub-Division may be used at any point on the System pending bulletining and assignment.

 Seniority rights of District Machine Operators are restricted to their seniority districts and t Steel Bridge Gangs, Pile Driver Gangs and Steam Shovel Gangs when such gangs are working on the districts of District Machine Operators.

 Rule 3. Seniority rights of employee above the rank of track laborer, except those provided for in Rule 2 of Article 3; will be restricted to Seniority below: ......

 "Rule 14. Seniority for Bridge and Building Department employee shall be separated into four (4) groups as follows:
                              Award Number 19707 Page 4

                              Docket Number MW-19601


                        "Group 1

                        B&B Department Foremen Group 2

                        B&B Department Lead Mechanics Group 3

                        B&B Department Mechanics Group 4

                              B&B Department Helpers"


                  "Rule 17. Employee temporarily transferred by the direction of the management from one seniority return to the position from which taken without loss of seniority."


                      "ARTICLE 5. BULLETINS AND ASSIGNMENTS


                        * ~ ·,: ;t +


                  Rule 4, Vacancies or new positions that are definitely known to be of twenty (20) days or less duration will not be bulletined. The senior unassigned employs above the rank of track laborer will be notified at last available address of such vacancy and will be required to protect the vacancy as early as possible. Pending the senior employs getting on the job, the vacancy may be filled in the most practicable manner,"


                      ~ ,t * r ~


                  Rule 6. In filling positions temporarily, as referred to in Rule 4, the following shall be observed:


                      (a) By individuals then employed in a lower classification in the gang or unit in which the vacancy occurs or the new position is created and wh rights on the district concerned, in the classification in which the vacancy occurs or the new position is created,


                      (b) 3y furloughed employee who hold seniority

                      rights on the seniority district concerned and in the __

                      classification in which the vacancy occurs, or in which

                      the new position is created.


.1
                    Award Number 19707 Page 5

                    Docket Number MW-19601


            "(c) By individuals then employed in a lower classification in the gang or unit in which the vacancy occurs or new position is created and who do not hold seniority rights in the classification to be filled and who are eligible and qualified for promotion.


            (d) If the vacancy or new position cannot be filled by means of any of the three foregoing methods, position may be filled by new employe."


            "ARTICLE 21. CONSENT TO TRANSFER


        Rule 1. Except for temporary service, employee will not be transferred to another district unless they so desire. Such transfers to be handled in accordance with Article 3, Rule 17."


We come first to the question of whether the case should be dismissed, as contended by Carrier, because the claim as originally presented to Carrier was enlarged by the inclusion of four more Rules (with the identical factual circumstances) allegedly violated, in the appeal step to the Chief Engineer. Carrier cites Award No. 13235 for support of this position. In that Award in addition to the material relied on by Carrier we also said: "We are of the further opinion that Section 3 First (i) of the Act contemplates that the claim denied by the chief operating office, on the property, is the claim which 'may be referred' to the Board." An examination of the record indicates that the original claim and the final claim submitted to the Board differ only in that the original refers to two rules and the claim referred to the Board recites identical facto and refers to violation of the "Agreement" without mention of specific rules. In the course of the handling on the property, as correctly stated by Carrier, Petitioner in its letter of four additional Rules. We do not believe that there is any appreciable difference between the Cla (See Awards 11906 and 18373). We do not believe that Carrier's right to defend itself was impaired by the changes above described, under these particular circumstances. Hence we w
Petitioner claims that the clear and unambiguous language of Article 3 Rules 1, 2 and 3 restrict the seniority of Tucker and Cooley to their original seniority dist_icts (prior to the transfers). We concur. Petitioner then contends that Carrier had n urges that under this Rule employees in a lower classification may fill a position temporaril
                    Award Number 19707 Page 6

                    Docket Number mw-19601


does not indicate that it is mandatory for a temporary position to be filled in this fashion, unless the employees in question are eligible and qualified for promotion. In fact Section (d) of the Rule indicates that such positions may be filled by new employees. Certainly, then, transferred employees have at least the same standing as new employees. Petitioner has presented no evidence to indicate that C promotion, other than by merely holding seniority in lower classifications in the Districts. The Organization urges the principle that seniority rights are a valuable property right which moat always be respected; we have consistently supported this pr Petitioner cites a series of cases in support of its arguments, man; of which deal with assignment or transfer of work (6856, 6938, 4987, 9647, 4667, 4490, 4076, 13326, 4584, 8093) and are not directly applicable to this matter. Petitioner also cites a ser 8034, 1058, 17931, 2675) which are related more directly to this case, but are factually so far different and with such different rules that they do not cast light on the issues herein.

 Primarily Petitioner is concerned with the alleged violation of the clearly established seniority by District in Article 3 Rule 3, but makes little note of the provisions of Rule 14 of the same Article and largely ignores Article 21. Everyone familiar with this industry recognizes the desirability of promotion from within; but contrary to Petitioners argument, seniority in a lower classification does not automatically ensure promotion to a vacancy in a higher class. Rule 1 of Article 5 states: "Promotions shall be based on ability and seniority; ability being sufficient seniority shall govern." An examination of the seniority lists of the two gangs in question do not reveal avail.:.ble employees for the vacancies in question having seniority as foreman. No evidence in the record reveals qualification of any of the employees listed. No employees in either Gang bid for the vacancies in question. Rule 1 of Article 3 as well as a number of other Rules cited contemplate transfers.

 We affirm the seniority principles enunciated in the Agreement in this case, particularly those dealing with seniority by District and for B&B employees, seniority by Group. At the same time, on the assumption that the transfers were voluntary, we do not find that the transfers in this dispute infringed on the seniority rights of any other employees or adversely affected any other employees. Therefore we shall dismiss the claim.

        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;

                  Award Number 19707 Page 7

                  Docket Number MW-19601


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes witlifn 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 Claim be dismissed.


                      A W A R D


        Claim dismissed.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third DiV%sion


ATTEST: ~ ~' g'
        4q.J

        E__ecutive Secretary


Dated at Chicago, Illinois, this 13th day of April 1973.