(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when the position of welder helper as advertised by Bulletin No. 53 dated June 27, 1978 was awarded to an applicant junior to Trackman D. L. Shaw (System File B-1089/D-9720).





OPINION OF BOARD; In this dispute Claimant submitted a timely bid for the
 position of Welder Helper which was subsequently awarded to
 Trackman L. W. Simon by Bulletin No. 53-A on July 26, 1978. This selection
 elicited the instant claim.

 In defense of his position, Claimant contends that Carrier did not consider his ability, merit and seniority as it was required to under Rule 33, but instead promoted the less senior employe, who, although more qualified in this speciality, was improperly selected. He asserts that he had all the qualifications implicitly r
Carrier contends that Claimant did not possess sufficient ability and merit to be assigned to this position, but that Mr. Simon, who passed the Welders examination and was qualified as a welder on June 29, 1978, did possess the requisite technical competencies. It asserts that Rule 33 permits Carrier officials to determine ability and merit standards. Claimant's seniority in Seniority District 2 is listed as December 15, 1969, while Trackman Simon's seniority is listed as May 13, 1974. They both held seniority in the Track SubDepartment.


In our review of this case, the pivotal question before this Board is whether Claimant was sufficiently qualified to assume the Welder Helper's Position. We will not consider the applicability of Rule 32 since it was not raised on the property during the claim's handling, but argumentatively developed for the first time in Carrier's submission. We will consider the significance and applicability of Rules 19 and 33.

 It is nadisputed that Tracl®an Simon was the most qualified bidder, when a comparative assessment of qualifications is considered. But there is no tangible or persuasive indication that Claimant was unqualified. To the contrary, the record shows that he filled temporary positions of Welder Helper in the past and served as a Welder Helper immediately prior to Mr. Simon's selection. Admittedly, we concur with Carrier's basic position that Rile 33 vest its officials with the authority to determine employment fitness credentials, but this contractual prerogative does not presuppose that only the most qualified applicant will be considered. There are no limitations in the Welder Helper's bid specifications that restrict selection only to those employes who passed the Welder's test. If this were so, the Welder Helper's position would be a misnomer. It is by definition a Helper's position. If Claimant were unqualified, it would be a moot issue, but he did adequately perform this work on numerous occasions. In fact, the Division Engineer stated at the February 12, 1979 investigation that Claimant performed satisfactory work, but defensively noted that Paragraph 5 of Bile 19 required Welder Helpers to qualify as Welders at any time during the training period. By itself, this would appear to be a limiting factor, but i~t is not a selection criterion. It simply means that once a person is selected for this position, he is expected to qualify for the Welder's position. Careful analysis of the record does not reveal that Claimant was unqualified for this' position. It indicates that he was not as technically astute as Mr. Simon. But superlative fitness is not the determinative standard. The test under Rule 33 is whether he possessed sufficient ability and merit for seniority to be considered. Claimant successfully performed the Welder Helper's duties in the past and his overall performance record comports with the manifest intent and purpose of Rule 33. We believe he met the litmus test. In Third Division Award 8051, we pointedly held in pertinent part that;

            "Under the language of this Agreement the selection may not be based an relative ability and merit. The Carrier has bargained away its right to select its employes for promotion based solely on ability and merit, or based on relative ability and merit. It is bound by its Agreement (Idle 15 (b)) to tap the senior employe for promotion and give him at least a trial period under Rule 18, if the senior employe has sufficient ability and merit."

                        Award Number 23185

                        Docket Number MW-23179 Page 3


We have consistently applied this interpretative standard in analogous type cases. It is foursquare on point with the facts herein. We will sustain 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 Agreement was violated.


                        A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


            ATTEST: xecutive Secretary


            Dated at Chicago, Illinois, this 18th day of February 19$1.