(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Southern Pacific Transportation Company ( (Pacific Lines)

(1) The Agreement was violated when the position of Assistant Water Service Foreman advertised in Bulletin No. 560 dated May 11, 1972 was awarded to an applicant who










OPINION OF HOARD: Under Rule 5(a) of the Agreement "7Is eniority of
 employes in all sub-departments shall be shown py
 classes and each-occupation shall constitute a class." Seniority in all
 classes (except laborers and helpers) begins as of the date the employe
 is assigned by assignment notice to the class or as of the date that he
 qualifies for a class under the provisions of Agreement Rule 8. Rule 7
 defines promotions as "advancement from a lower class to a higher class.
 Subject to the applicable qualification requirements set forth in Rule
 8, promotions will be based on seniority."


None of the seven employes who entered applications in response to the May 1, 1972 posting of a vacancy in Position No. 1, Assistant Foreman, Water Service and Fuel Gang No. 3 at Los Angeles held seniority in the class involved (seniority Class No. 2). Although Claimant Bolin was among the bidders, Carrier selected another bidder--G. R. McDaniel-who was junior to claimant as No. 7). Claimant thereafter filed the subject claim.

 Carrier states it considered claimant unqualified for the subject position. Since Carrier bears a heavy responsibility to the public and its employes for safe and efficient operation, we are normally loath to disturb its judgment on employequalifications, absent a showing that an adverse determination on qualifications was arbitrary or capricious. But claimant asserts that on or about June 30, 1966 he filed a written application to qualify for the position of Assistant Water Service Foreman, per Rule 8. Although Carrier responds it has no record of having received such an application, Carrier Exhibit "D" quotes one of its Superintendents as stating he was advised that claimant had filed an application for qualifications. Carrier further notes that a few months before the subject incident occurred, two other employes also junior to claimant as Water Service Mechanics obtained seniority in the Assistant Water Service Foreman class, Los Angeles Division, and the January 1972 seniority list reflecting these facts was "accessible" to claimant, but he did not protest. Petitioner contends the successful bidder failed to furnish a copy of his application to the Organization's Division Chairman, as required by Rule 10(b).

 Although the successful bidder failed to follow the prescribed procedure, such failure does not mean that Claimant Bolin was qualified for the desired position. The record shows claimant slept on his Rule 8 rights. The record also shows Carrier failed to live up to the responsibilities it undertook when Rule 8 was adopted. The award will be thPG claimant sha11 be offered immediate opportunity to qualify for an Assistant Foreman positlion similar to the position involved in the presefit dispute, and--if he qualifies--shall be offered the next such vacancy that develops, with adjustment in seniority date and compensation as requested in 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 21573 Page 3

                  Docket Number b&T-21054


        That the Carrier and the R ptoyes 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 to extent indicated in Opinion of Board.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division

ATTEST: at 4/0
        Executive Secretary


Dated at Chicago, Illinois, this 17th day of June 1977.