PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the General Committee of the Brotherhood of


Claim on behalf of C&S Maintainer J. H. ILmmis, Harrisburg, Pennsylvania.
(a) Claim that Carrier denied promotion and caused loss of work opportunity to Claimant when it violated the Signalmen Is Agreement, as amended and particularly Article 4, Sec. 18(b), when on August 18, 1981, position number 1001, Inspector Tests, Lancaster, Pa. was awarded on Bulletin No. 2125 dated August 18, 1981, to Mr. C. E. Welsh, effective August 31, 1981, instead of to Claimant. Claimant, being qualified and having the most service in the classes covered by the Agreement, should have been awarded the position.
(b) Claim that Carrier should award position No. 1001 (As advertised on Bulletin 2120, File N Further, Claimant should be compensated for difference in wages, including overtime, between his present position or any other position he may hold, by displacement or award, until such time that he is awarded position 1001. (Carrier File No. NEC-BRS-SD-140 J. H. Hemmis)
OPINION OF BOARD: Claimant, a Maintainer, Communications and Signals, bid
 on the position of Inspector 7L-sts based on a posting on
 August 18, 1981. He was denied the position, which was awarded to an
 Assistant Foreman who, as stated by the Organization, had less seniority "in
 the classes covered by the Agreement".
Applicable provisions of the Agreement are found in Article 4, Section 18 which reads as follows:


                    Locket Number SG-25478


        "(b) Bnployes covered by this Agreement who possess the necessary qualifications to plan, direct, lead, regulate and coordinate the work of other employes will be given consideration for promotion to positions in the foreman class. When two or more employees do possess the necessary qualifications (referred to in the preceding sentence of this paragraph) the employe with the most service in the classes covered by this Agreement shall be selected for promotion to the foreman class."


Luring the claims handling procedure, the Carrier failed to reply in timely fashion to one of the Organization's appeals. As a result, the Carrier agreed to pay the monetary portion of the claim. This payment ran to December 31, 1982, at which date the position was abolished.
Since the monetary portion of the claim has been settled and in view of the abolishment of the position, the Organization seeks as a remedy the Claimant's "placement on the seniority roster in [the Inspector Foreman Class] immediately ahead of the employee assigned". The Organization argues that the Carrier's failure to meet the time limit requirements should include such remedy.
Previous Awards of the Third Division hold to the contrary. That is, while the monetary remedy is required, payment of such satisfies the Agreement while leaving the merit portion of the claim unresolved. In a similar case involving seniority placement, Award No. 20268 stated:
        "Thus, the sole issue raised by the instant record is whether the Carrier's failure to render a timely denial to the initial claim made it liable for the claim beyond October 22, 1969, without regard to the merits, or whether the Carrier's liability under the time limits stopped when it issued its denial letter on October 22, 1969, leaving the claim subsequent to such denial to be considered on its merits. In National Disputes Committee Decision 16, Third Division Locket CL-12336 (Article V-8-21-54 Agreement), it was stated:


          'The National Disputes Committee rules that receipt of the carrier's denial letter dated L2cember 29, 1959 stopped the carrier's liability arising out of its failure to comply with Article V of the August 21, 1954 Agreement.


          DECISION: Claim for compensation for each day from August 16, 1959 to December 30, 1959 shall be allowed as presented, on the basis of failure of the carrier to comply with the requirements of Article V of the Agreement of August 21, 1954, but this shall not be considered as a precedent or waiver of the contentions of the carrier as to this claim for dates subsequent to December 30, 1959, or as to other similar claims or grievances.'

                    Award Number 25604 Page 3

                    Docket Number SG-25478


        "The above dxision leaves no doubt that, in the facts of this dispute, the Carrier's liability under the time limit provisions was stopped by its October 22, 1969 letter of denial of the claim. See also Award 16573. The bnployes have not argued the merits of the claim for the period subsequent to October 22, 1969 and, consequently, the merits of the claim a Accordingly, we shall deny the claim."


        More recently, Award No. 24298 found:


        "Many awards have been zendered by this Division involving late denial of claims by Carriers, especially since Decision No. 16 of the National Disputes Committee. See also Decision No. 15 of the same Disputes Committee. Decision No. 16 of the National Disputes Committee, and awards following the issuance of that Decision, have generally held that a late denial is effective to toll Carrier's liability for the procedural violation as of that date. From the date of late denial, disputes are considered on their merits if the merits are properly before the Board.


        "We find that the proper measure of damages for Carrier's violation of Rule 49(a)1 in the dispute before us, is compensation for claimant K. A. Bitterman at his straight time rate from September 18, 1980, through and including January 28, 1981. See Award No. 5 of Public Law Board No. 1844, as well as Third Division Awards No. 19842 and 21289 dealing with investigations not timely held, also Atlantic Coast Line RR v Brac, 120 F. 2d 812 (1954).


        "As to the merits of the dispute, considering the offenses Claimant Bitterman was clearly guilty of, we will not award that he be reinstated to service or compensated beyond January 28, 1981 (the date of the Carrier's tardy denial)."


In the present instance, the Board finds no distinguishing basis on which to find otherwise than as in the two cited awards.
The question therefore remains as to whether the Claimant was improperly denied the position of Inspector Tests. Article 4, Section 18(b) refers to engloyes "who possess the necessary qualifications to plan, direct" etc. Throughout the dispute, the Carrier maintained that the Claimant was not qualified. (The employe awarded the position, an Assistant Foreman with a number of years of experience in that position, _was considered qualified.) Although the particular circumstances involved prevented such from taking place, offers were made but not fulfilled to provide a test for the Claimant.
                    Award Number 25604 Page 4

                    Docket Number SG-25478


Based on the entire record, the Board finds no basis to question the Carrier's determination that the Claimant was not qualified. No contrary evidence was set forth by the Organization. This is sufficient to support the Carrier's decision.
With this finding, it is not necessary for the Board to examine other basis on which the Carrier alleges that the position was awarded properly.
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 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:
        Nancy J. - Executive Secretary


Dated at Chicago, Illinois, this 22nd day of August 1985.