PARTIES TO DISPUTE

STATEMENT OF CIAIM; "Claim of the System Committee of the Brotherhood that;

 (1) The Agreement was violated when Mario Gonzales was used to operate a swing loader beginning July 31, 1978 instead of wing Claimant J. L. Jimenez who was available to perform such service (Carrier's File 393MofW) .

 (2) An a consequence of the aforesaid violation, Claimant J. L. Jimenez be allowed pay at the swing loader operator's appropriate rate for a number of hours equal to the total expended by Mario Gonzales in performing such work beginning July 31, 1978 and continuing until said violation is discontinued."

 OPINION OF BOARD; On July 31, 1978, Carrier, without bulletin, assigned
 M, Gonzales, a Laborer in the Track Department, seniority date December 2, 1974, to operate a swing loader. The position of Swing Loader Operator is a higher rated position than that of Laborer, paying approximately ninety cents ($.90) per hour more. According to Carrier, Employe Gonzales "._ made a request of the Track Supervisor to qualify as a Swing Loader Operator and was therefore,
Claimant, J. L. Jimenez, an Assistant Foreman, seniority date April 26, 1974, filed a time claim on September 12, 1978, alleging that Employe Gonzales had been improperly assigned to operate the swing loader on July 31, 1978, and that Carrier's action was in violation of "Rule 17 - Filling Non-Bulletined Positions" of the parties' Agreement which states as follows;

Organization's basic position in this instant dispute is that since Claimant was senior to Employe Gonzales, and since the position of Swing Loader Operator was a preferable position, then, in accordance with Rule 17, Claimant should have been assigned to said Position (First Division Award 15128 and Third Division Awards 2716, 6136, 14491 and 17559). Continuing, Organization also
                        Docket Number MW-23182 Page 2


argues that Carrier's allegation that Employe Gonzales was "most qualified" is irrelevant in this matter because, according to Organization, Rule 17 "... clearly provides that senior employees will be given consideration in filling preferable positions" and "claimant's ability need only be sufficient for the purpose" (Third Division Awards 2638, 5857, 11279 and 14792) (Emphasis added by Organization).

 Turning next to a related issue, Organization contends that Carrier's failure to bulletin the Swing Loader Operator position was a violation of "Rule 13 - Filling Positions by Bulletin", and, therefore, was improper. According to organization, said Rule ".. is clear and unambiguous in that it excepts only the position of Laborer from being bulletined" (Employes' Exhibit A-5, p. 1) (Emphasis added by Organization).
As its final area of argumentation, Organization, in response to Carrier's assertion, maintains that though "another laborer may have had a better right to make a claim" in this instant dispute, Claimant properly filed the claim, and, moreover, who Organization names " .. as claimants is immaterial insofar as the violation is concerned" (Third Division Awards 17801 and 18557).

 Carrier's position in this matter is predicated upon several interrelated factors. Initially, Ca in this dispute because it (Carrier) is not required to bulletin roadway machine operator jobs as per Rule 13, and that the Agreement has always been interpreted and applied to give preference for such work to employes within the laborers classification. In such situations, Carrier contends that "(I)t has been a long standing practice on this property for Supervisors to simply 'assign' the most qualified and senior laborer to (operate) the machine."

 Though Carrieracknowledges that it may have bulletined various machine operator jobs previously, this particular procedure was utilized when a major track construction program was anticipated and when the work could be scheduled far enough in the future so as to make such advanced bulletining feasible. Carrier contends, however, that most machine operator work is irregular and intermittent, is usually of a short-run duration and is assigned as needed, thus making such bulletining impractical. Lastly in this same context, Carrier maintains that there is no contractual requirement to bulletin such jobs, even though Carrier may have done so in a few previous, isolated instances.

 As its second major area of argumentation, Carrier contends that under the existing rules, Claimant did not have seniority preference to bid on the Swing Loader job and that he would not have been assigned to perform the disputed work because he is an Assistant Foreman 1(b) and he is not in the track laborers classification rank whic and traditionally been assigned. In support of the aforestated argument, Carrier maintains that the Track Sub-Department contains only specialized classifications for Crane Operators and Crane Operator Helpers and that all other miscellaneous
                        Award Number 23222

                        Docket Number MW-23182 Page 3


machine operation work (Motor Car Operator, Swing Loader Operator, Power Tamper Operator, Power Ballaster Operator, Power Track Liner Operator, and Jet Snow Blower operator) has been assigned within the classification rank of laborer. Furthermore. Carrier also maintains that, in addition to the fact that Claimant was not in the classification rank from which machine operators are to be called, Claimant "has not worked as a Swing Loader Operator (and) he has no prior experience on any roadway equipment." However, in regard to this latter point, Carrier aagerts that because "Claimant's qualifications, or lack thereof, has not heretofore been discussed or made part of the Employees position during the handling of this case on the property, ... it is, therefore, not a matter of consideration for this Board."

 There are any number of significant directions which this award could take. The record, however, is replete with a multiplicity of arguments -- many of which are contradictory -- and a dearth of substantive or probative evidence. Indeed, in this particular case there appears to be more that is unknown than is known. Rather than blundering ahead, however, and deciding upon issues which will have no real bearing on the resolution of the dispute itself, suffice it to say that, absent any other considerations, the two (2) most basic questions of this dispute are; (1) did Claimant possess sufficient seniority within the appropriate classification in order to bid on the Swing Loader Operator job; and (2) did Claimant possess sufficient ability/qualification to perform the requisite duties of said job.

 In regard to the first question, given the facts of the record herein, an answer is indeterminable. While Claimant may have had a greater number of years of service within the Track-Sub Department, Claimant's present position of Assistant Foreman raises concerns on the part of this Board regarding the applicability of that part Swing Loader Operator, when making seniority determinations. In view of this critical question, as well as others which, on the basis of the foregoing, need not be specified at this time, the Board cannot determine with any degree of certainty if Claimant possessed sufficient seniority or the contractual right to bid upon the disputed job.

        Turning next to the question of Claimant's "ability/qualifications" to

perform the work of Swing Load Operator, Carrier maintains that the employe
 assigned must be "most qualified and senior" whereas Organization, apparently,
 argues that said employe needs only to be "senior and sufficiently qualified."
 While this Board supports Organization's basic position on the issue of "suffi
 ciently qualified" as opposed to "most qualified" in matters of promotion and/or
 assignment to a preferred position, this particular determination cannot be
 applied in this instant dispute because there is insufficient evidence in the
 record with which to prove or to even suggest that Claimant was qualified
 is de m to oprste siring LOMOris BRMM1e of this fact,
 ere ore, a Board concludes that such a lack of apparent qualification --
 "sufficient" or otherwise -- was proper justification for Carrier's refusal to assign Claimant to perform the disputed work. Said refusal was neither arbitrary, capricious nor improper, and, therefore, shall not be disturbed.
          Award Number 23222

          _. Docket Number MEW-23182 Page 4


        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 not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST: _

        " &A ~

            Executive Secretary


Dated at Chicago, Illinois, this 16th day of March 1981.