PARTIES TO DISPUTE: (Missouri-Kansas-Texas Railroad Company

(1) The Carrier violated the Agreement when it failed to assign Mr. Glen M. Webb to the position of Foreman on Circular No. 194, dated June 19 1973 but assigned Mr. H. G. Edwards thereto (System File 300-33/2579-4~.

 (2) That Bulletin No. 194, dated June 19, 1973, be withdrawn and assignment made to Mr. G. M. Webb.

 (3) That M'. Glen M. Webb be allowed the difference in what he receives as Assistant and/or Relief Foreman and what he should receive from June 19, 1973 as Foreman and continuing until claim is settled.

 (4) That, in addition to the money amounts claimed herein, the Carrier shall pay Claimant an additional amount of 6$, per annum compounded annually on the anniversary date of this claim.

 OPINION OF BOARD: On May 24, 1973, Carrier issued Circular No. 189
 advertising the position of Foreman on Section 453
 (effective June 19, 1973).

 Both Claimant and employee, Edwards, submitted appliqations. No bids were received from any employee with seniority in the Foreman classification, and on June 19, 1973, Edwards was assigned to the position.

 Claimant's track laborer seniority date is March 4, 1963; whereas Edwards' seniority date is January 19, 1970. In addition, Claimant was promoted to Assistant Section Foreman on March 17, 1970 and was selected to perform duties as a Relief Foreman on June 12, 1972. Edwards had no Assistant Foreman seniority, nor had he been selected to be used as a Relief Foreman.







        "foreman and/or track foremen on their respective seniority districts. The Track Laborers so selected will be advised in writing, a copy of such advice will be sent to General Chairman and to Local Chairman. The men so selected shall be those the Division Engineer regards as most likely material for promotion to assistant track foreman and/or foreman. These men shall be used for relief assistant track foreman and/or track foreman's work on their seniority district, and if their work as relief foreman or assistant foreman during the period of twelve consecutive months following their selection for relief work is satisfactory and they pass satisfactory examinations, they shall be eligible in the order of their written designation as relief foreman for promotion to assistant trac and/or track foremanship on their seniority district. Where conditions make necessary men may be promoted in less than twelve months.


        Rule 2. New positions and vacancies shall be bulletined within within ten (10) days previous to the date such vacancies occur and the right to bid on such vacancies or new positions will be accorded foremen, assistant and/or relief foremen in the order na


Carrier states that the issue presented to this Hoard has been settled time and again by Awards of this Division and Public Law Hoards, and urges that because nine (9) Awards (by seven (7) diferent Referees) have denied similar claims on this property, the prior decisions must control.

 The employees concede that the prior Awards, cited by Carrier, have considered promotion from a lower rank to a higher rank, but none of those Awards involved a promotion in which an Assistant Foreman (and qualified Relief Foreman) was involved, except 20062. We are asked to consider the distinctions which appear in that Award - and this Docket; as contrasted to the different factual circumstances which controlled the Awards relied upon by Carrier.

 We do not fully concur with the contentions advanced by either party. Certainly, we do not read the pertinent Rules Agreement as "obligating" Carrier to assign Claimant to the position solely because he held seniority as an Assistant Foreman. At the same time, we cannot accept the Carrier's conclusion that because Claimant held no seniority in the classification of Foreman, his seniority in lower classifications is meaningless.
                  Award Number 20883 Page 3

                  Docket Number NW-20944


Clearly, the prior Awards of this Hoard (but for Award 20062) concerning this rule have consistently held that seniority in a lower classification does not entitle the employee, per se, to a promotion to a higher classification. Award 20062 does consider the factor of seniority in the classification of Article 4, Rule 2, and concludes that said section does give an employee so situated certain rights. Hut, under this record, we are not prepared to rule that Award 20062 disposes of the issue.

 We do not read that Award as authority for the proposition that Claimant has an automatic right to promotion. The Award speaks in terms of "consideration" for assignment to a Foreman's position and "rights to bid." However, in this case, Carrier raised, on the property, some rather serious questions of lack of qualifications which dictated its determination to refuse to promote Claimant, and from the evidence properly before this Hoard for co the employees presented sufficient evidence upon which we can conclude that Carrier's determination in that regard was arbitrary or capricious. We are unable to find any suggestion that this Hoard was faced with such a question when it issued Award 20062.

 Thus, while we find merit in the conclusions expressed in Award 20062; nonetheless, we are unable to conclude that it dictates a sustaining Award because of the que - but not under review in that case.

        FINDINGS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employee 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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                  A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT HOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 26th day of November 1975.