(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Missouri-Kansas-Texas Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The position of foreman as advertised by Circular k14 dated August 19, 1981 shall be awarded to Mr. R. L. Lewis effective on or about September 8, 1981 (System File 400-200/2579)."
OPINION OF BOARD: The pivotal issue in this dispute is whether Carrier's decision
 not to award the position of Foreman, Extra Gang 558 was
 violative of the rules cited by the Organization. These rules are referenced
 as follows:












On August 19, 1981, Carrier issued Circular No. 14 announcing the vacancy of the Foreman's position, Gang 588 and inviting bid applications from employes holding Foreman's seniority and employes not holding this positional seniority, but who desired to bid on the announced foreman's position. Claimant who did not hold foreman's seniority submitted an application for the position, but it was not assigned to him. A claim was filed on October 7, 1981 wherein Claimant argued that as the most senior employe he should have been assigned the position since employes other than those holding foreman's seniority were invited to submit bid applications.
                      Docket Number MW-25048


In defense of his petition, Claimant asserts that the aforesaid rules do not preclude an employe in a lower classification from being considered for a position in a higher classification. He avers that this construction is buttressed by the clear language of Rule 1 of Article 5 which obligates Carrier to advertise all positions except those of Track Laborer. He contends that second paragraph pertaining to ability and seniority considerations by definition and industry practice construes promotion as advancement from a lower to a higher classification and maintains that Carrier is required to consider employe bid requests upon the criterion of relative seniority ranking. He argues that the decisional precedents cited by Carrier, particularly Third Division Award No. 11587 are noticeably distinguishable from the instant facts since the rules and situations addressed by those decisions are substantially different. More pointedly, he contends that revised Rule 2 of Article 3 does not confine seniority to an employe's respective classification which is the essence of the decisions cited by Carrier, but instead entitles an employe's seniority to positions in higher classifications provided ability is sufficient.
Carrier argues that this case is a resurrection of the same rules which have been considered by the Third Division and Public Law Hoard No. 76. In effect, it asserts that Rule 1 of Article 5 does not require Carrier to promote to a higher clasification or position, employes who do not hold seniority in the higher or different classification. It contends that seniority in a lower classification does not automatically insure promotion to a vacancy in a higher class and cited as controlling Third Division Award No. 20283. In that Award which involved the same parties, the same issues and the same rules, the Hoard held that seniority in a lower position did not entitle an employe to a promotion to a higher classified position. Other Divisional Awards cited were 20206, 19707, 20085, 20206, 20291 and 20370.
In our review of this case we concur with Carrier's position. Our decisional law on this point is clear, namely that an employe holding seniority in a lower classification, is not automatically entitled to a promotion to a higher classification. Consistent with the language of Rule 1 of Article 5 and the prospective employes targeted by the August 19, 1981 bid circular Claimant was not barred from submitting an application for the position, since the circular invited applications from employes not holding foreman's seniority. He was not, however, per se entitled to the higher classification by virtue of his seniority. There is no Agreement support for this position. Moreover, Claimant has not sufficiently demonstrated that he was qualified for his position and thus, the question of presumptive ability is moot.
        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 Hoard has jurisdiction over the dispute involved herein; and
        That the Agreement was not violated.

                      Award Number 25070 Page 3

                      Docket Number MW-25048

                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: _
 Nancy ver - Executive Secretary
Dated at Chicago, Illinois, this 4th day of October 1984.