(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (The Baltimore and Ohio Railroad Company

 STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of Rail
 road Signalmen on the Baltimore and Ohio Railroad Company
 that:

 (a) Carrier violated the Signalmen's Agreement, particularly Rule 47-a-paragraph 5, when it assigned Mr. D. E. Smith to the Signal Maintainer's position, headquarters Laughlin Junction, Pa., as per Bulletin 1001-BA dated March 9, 1971.

 (b) Mr. D. E. Smith now be allowed three and one-half hours traveling time daily at time and one nine cents per mile for use of his private vehicle for one round trip daily between Bridgeport, Ohio, and Laughlin Junction, Pa., which is approximately 124 miles; any emergency service he may be called upon to perform at Laughlin Junction, Pa., other than his regular tour of duty.

OPINION OF BOARD: When no bids were received on an advertised Signal Maintainer
 vacancy at Laughlin, Pa., the Carrier assigned the Claimant,
 Signal Maintainer, D. E. Smith, to the vacancy. When the no-bid vacancy arose
 two employees junior to Claimant were on the roster in the class of Signal Main
 tainer. The claim is that under the Agreement an employee junior to Claimant
 should have been assigned to the vacancy and, accordingly, the Claimant is en
 titled to travel time and mileage in regard to services performed on the Laughlin
 position.

 The Petitioner argues that Claimant's assignment to the no-bid vacancy was violative of Rule 47 (a) 5 of the Agreement because (1) Claimant was not the junior employee in the class of Signal Maintainer and (2) employees junior to Claimant were on the roster in the class of Signal Maintainer and were "sufficiently qualified" to w was the junior employee working in a lower class who held seniority in the class of Signal Maintainer and who was "sufficiently qualified" for the position.











We find no merit in Petitioner's first argument. The text of Rule 47 (a) 5 plainly and clearly provides that the junior employee working in a lower class must be "sufficiently qualified" for the assignment. Junior employee status in the class The junior employee must also be "sufficiently qualified" and, thus, the issue here is a factual one, namely, was either of the Signal Maintainers who were junior to Claimant "sufficiently qualified" to work the no-bid vacancy.

 With regard to this factual issue, the Employees' position on the property is found in an April 14, 1971 letter of the General Chairman which states that:

In its Ex Parte Submission the Petitioner stated the following:









The Carrier's position on the property is found in a May 27, 1971 letter of the Assistant to Vice-President - Labor Relations which in pertinent part, stated;



In its Rebuttal, the Carrier states that:

It is clearly established by the foregoing, and the record as a whole, that two employees junior to Claimant held seniority in the class or craft covered by the advertisement of the vacant position. We have no doubt that these facts made a prima facie case that each of the junior employees was qualified for assignment to the vacancy, so the next question is whether Carrier offered probative evidence to rebut this prima facie case. The Carrier stated on the propert before selecting Claimant as the most junior "sufficiently qualified" employee; however, this is but a crnclusionar;· statement or statement of ultimate fact. Nowhere in the record has the Carrier provided evidence of any supportive or explanatory facts as a basis for this conclusion. We therefore believe the criteria set forth in our prior Award 15444 (Dorsey) is applicable:
                    Docket Number SG-19803


              " ..when Petitioner made a prima facie case, as it did, the burden of going forward with the evidence shifted to Carrier. The unsupported assertions of Carrier did not satisfy its burden ....


        Similarly, in this dispute, the Carrier has not gone forward with probative evidence to rebut the prima facie case made by the Petitioner and, consequently, on the whole record and under the cited authority, we must conclude that employees junior to Claiman to the Signal Maintainer vacancy at Laughlin, Pa. Accordingly, we conclude that Carrier violated Rule 47 (a) 5 in assigning Claimant to the Laughlin no-bid vacancy and we shall sustain the claim.


        In conclusion we note that we have carefully studied the Awards cited by Carrier, Awards 11572, 16309, and others, wherein this Board ruled favorably to Carrier in disqualification disputes. In those Awards a senior employee was denied assignment due to lack of qualifications and, for that reason the assignment went to a jun asserted by the Carrier to lack qualifications and, for that reason, the assignment went to the seni two situations are u e dissimilar and, consequently, we do not believe the referred to Awards have application to this dispute.


              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 violated.


                          A W A R D


              Claim sustained.


                                  NATIONAL RAILROAD ADJUSTMENT BOARD

                                  By Order of Third Division


              ATTEST: ~' Executive Secretary


        Dated at Chicago, Illinois, this 25th day of January 1974.


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