(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Southern Railway Company

(a) Carrier violated the Clerks' Agreement at Memphis, Tennessee, when it refused to assign Mr. Agee Green to the position of Chief Clerk to the ?;gent Terminal Control instead of junior clerk Mr. J. W. Dunavant.

 (b) Carrier shall be required to compensate Mr. Green for the difference between his rate as Claim Clerk and that of Chief Clerk beginning August 1Z, 1974, and continuing until he is assigned to the position of Chief Clerk.

 OPINION OF BOARD: The chief clerk position to the agent terminal
 control at Memphis, Tennessee, was advertised by
 vacancy bulletin dated July 29, 1974. Claimant Agee Green bid for the
 job but it went to J. W. Dunavant effective August 12, 1974. Green's
 seniority date was December 13, 1965, and Dunavant's was May 3, 1967,
 about 17 months junior.









      Also specifically applicable is:


"RULE C-2 -- GRIEVANCES

 An employee who considers himself unjustly treated, otherwise than covered by these rules, shall have the same right of investigation, hearing, appeal and representation as provided in Rule C-1 if written request which sets forth the employee's complaint is made to his immediate superior officer and/or designated officer with whom claims are filed, within thirty (30) days of cause of complaint.

      NOTE: This rule should be used particularly in

      instances where an employee is adjudged not

      to have relatively equal or sufficient

      qualifications, merit and capacity for a

      position on which he has submitted an

      application or bid and a junior employee

      has been assigned or awarded the position.

      The employee must then present evidence at

      the hearing that he did have relatively

      equal or sufficient qualifications, merit

      and capacity and the burden of proof rests

      with such employee. In the event the employee

      had previously filled the position for thirty

      (30) days or more work days during a vacancy

      or during a vacation period and had not

      previously been disqualified therefrom, the

      burden of proof would then shift to the carrier

      to prove such employee did not have relatively

      equal or sufficient qualifications, merit and

      capacity.


This rile is not limited solely to cases of the type cited above, but may be used in any case where an employee feels he has been unjustly treated in some manner not covered by any specific rule(s) of this agreement."

    A distinction is drawn between the language of Rule B-7, i.e.,

"merit, -capacity, and qualifications-tieing-sufficient, seniority shall govern" and the language of:

          "RULE B-6 -- PROMOTION, VACANCIES OR NEW POSITIONS NOT FILLED BY SENIORITY


Promotions, vacancies or new positions which are not filled by seniority shall be filled as follows:
                  Award Number 21640 Page 3

                  Docket Number CL-21539


        "Qualification, merit and capacity being relatively equal, preference shall be given employees in the service, who have made application, in order of their service age."


This distinction has merit. In the B-7 situation the senior applicant need only show he has "sufficient" qualifications and in the B-6 case he must show that he is "relatively equal" to his junior. Management has these mixed in its thinking throughout, insisting that
 "claimant did not present evidence that he did have relatively equal or sufficient qualification, merit and capacity for the chief clerk position, compared to those of Dunavant." A more contractually correct recitation would strike the words we have underlined in this above quote.

 But this erroneous view of claimant's burden does not necessarily vitiate the decision. Instead, it requires us to examine the proof offered by claimant to see if he met the mere sufficiency burden. At the hearing, claimant testified and was accompanied by three union men. Here was the opportunity to show the sufficiency of claimant's merit, capacity and qualifications. Something should have been said besides "he should have been given a chance." No one - not even claimant - attested by example, opinion or otherwise that claimant was sufficiently qualified for the job. Claimant was a yard clerk and the job was agency clerk. Claimant said "I worked claim job" in the agency, but the bulletined job description contains many heavier duties than that. Thus, we must conclude that claimant did not meet his burden of proof. The evidence heavily preponderates the other way. Rule B-10 is cited by the Employes:

        "RULE B-10 -- FAILURE TO QUALIFY


        Employees awarded bulletined positions will be allowed a reasonable time in which to qualify and, failing, shall retain all their seniority rights, may bid on any bulletined position, but will not displace any regularly assigned employee."


This, however, does not override the Note is Rule C-2, casting the burden of proof on claimant.

 Much is made of the fact that these are revised rules which substantially changed management's previous unfettered discretion in such matters. Still it boils down to proof, and no cited case persuades us CD uphold the claim under these facts.
                    Award Number 21640 Page 4

                    Docket Number CL-21539


FINDINGS: The Third Division of the Adjustment Board, after giving the
 parties to this dispute due notice of hearing thereon, and
 upon the whole record and all the evidence, finds and holds:

 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 aver the dispute involved herein; and

        The Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 29th day of July 1977.

~~GEI VEO

AU G 2 4 1977

      `BERG P