NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20401
Joseph A. Sickles, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it awarded to R.
Lozano the position of Welder Foreman instead of awarding said position to
R. C. Gayton, the senior applicant (System File TJ-1-72/UM-1-72).
(2) The position of welder foreman now be awarded to R. C. Gayton, with compensation awarded to the
welder foreman's rate and the welder's rate, plus all overtime, for the period extending from Januar
claimant is placed on the position in question.
OPINION OF BOARD: Rule 4 of the Agreement states:
"Rule 4. Seniority rights of all employes are confined to
the sub-department and group in which employed, except as
otherwise provided herein. The sub-departments are as
follows:
1. Bridge and Building.
2. Track.
3. Scales and Work Equipment.
"Track Sub-Department
Group 1 (a) Track Foremen
(b) Assistant Track Foremen
(c) Section Laborers
(d) Extra Gang Laborers
(e) Trackwalkers
Group 3 (a) Welder Foremen
(b) Welders
(c) Grinder Operators
(d) Grinder and Welder Helpers
* * *of
Award Number 20533 Page 2
Docket Numbe- :W-20401
Rule 5 of the Agreement :ates:
"Rule 5. (c) Seniority rights of employes in system
thermit, electric and acetylene welding crews will extend over entire railroad. Seniority rights of
the division on which they are employed.
(d) Except as otherwise provided in this
rule, track sub-department employes will have seniority
rights at any one time only in the territory over which
one Roadmaster has jurisdiction."
Rule 6(a) of the Agreement states:
"Rule 6. (a) Except as provided in paragraphs (b) and (c)
G-
this rule, vacancies or new positions will be filled
first by employes holding seniority in the group and rank
in which the vacancy or new position occurs; if not so filled,
they WILL be filled by qualified employes in succeeding lower
ranks IN THAT SENIORITY GROUP in accordance with Rule 8. In
the event that vacancy or new position is not so filled by
employes in the seniority group in which it occurs, then it
will be filled by qualified employes from other seniority groups
in the respective sub-department desiring it before employing
new men. Employes so assigned will retain their seniority rights
in their respective groups from which taken."
A Welder Foreman retired in early 1972 and the vacancy was posted
for bid. Claimant (Gayton) and Lozano submitted bids, and the position was
awarded to Lozano. At the time, both individuals held seniority in Group 3,
but Claimant was senior to Lozano as a welder.
In the documents submitted to this Board, there is considerable
discussion of the ability and merit of the respective applicants, as that
relates to Rule 8:
"Rule 8. Promotion shall be based on ability, merit, and
seniority. Ability and merit being sufficient, seniority
shall prevail, management to be the judge of ability and
merit, subject to appeal."
However, we find that the Carrier did not raise the question of
Claimant's abilities when the matter was being considered on the property.
In the initial claim, the Local Chairman stated:
~.W i
Award Number 20533 Page 3
Docket Number MW-20401
"I understand that Carrier did not decline promotion
for Mr. Gayton per Rule 8."
Carrier did not, on the property, contest that understanding.
In the final denial letter, Carrier cited Award 14320, which dealt with
ability and merit, but, it was cited concerning Rule 12(1). The final
paragraph stated:
"In summary, based on Rules 8 and 12(1)
...."
However, based upon the Local Chairman's direct statement, cited
above, Carrier was obligated to raise Claimant's qualifications in more
specific terms if it desired to defend its action based upon Rule 8.
Rather, the Board concludes that Carrier based its action on
Rule 12(1):
"(i) An employe promoted from a lower to a higher rank
will rank above an employe declining promotion. An employe accepting promotion will have priority in
Lozano had been awarded a Track Foreman position in 1971 (in
Group 1). Thos, Carrier argues that Rule 12(i) required it to promote
Lozano instead of Claimant.
Carrier places significant reliance upon Award 14320, which considered a dispute between these s
dispute is identical in principle. Accordingly, Carrier states that the
doctrine of Res Judicata requires a denial of the claim. We do not concur
with Carrier's conclusion. Regardless of the arguments and contentions
which may have been advanced in the prior docket, Award 14320 does not base
its conclusions on Rule 12(1). Although the Award cites the Rule, it denied
the claim based upon a showing that the senior employee did not possess sufficient ability and merit
The Organization argues that Rule 6(a) controls. No employee holding seniority as a Welder Forem
(a) the senior employee in the succeeding lower rank should have been selected. The Carrier could no
accordingly, Rule 12(1) does not apply. Further, the Claimant urges that
Rule 12(1) applies only when previous promotion is made "within" the seniority
group in which the new vacancy or position occurs.
Award Number 20533 Page 4
Docket Number MW-20401
We have little difficulty in reading Rules 6(a) and 12(1) in
harmony, when we confine our consideration to one group. If an employee
fails to seek promotion within his group, he does so at his peril concerning
future promotions within the group. However, when we consider the facts of
the instant case, a harmonious reading of the two rules becomes obscured,
and we concur with Carrier's statement that the rules are rather complex.
We presume that, under Carrier's contentions, each employee, regardless of
his group, must bid on every permissible position of "promotion" is other
groups within his sub-department, which would appear to be a rather disruptive result. On the other
12(1) is broad in its terms and Rule 6(a) allows employees to bid from one
seniority group to another within the sub-department. Rule 7 defines promotion se "...an advancement
position is not untenable.
Claimant has the burden of proof. While we find merits in the contentions of both parties, we are un
as Claimant suggests. Accordingly, we will 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;
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 claim be dismissed.
A W A R D
Claim dismissed.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
ecutive Secretary
Dated at Chicago, Illinois, this 22nd day of November 1974.