Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29351
 THIRD DIVISION Docket No. MW-28999
 92-3-89-3-418
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAL'~: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when the Carrier assigned junior employes W. L. Macs, A. R. Narvaez and F. W. Tom instead of Messrs. J. Rojas and J. Santistevan :o system gang laborer positions on the System Gang established in Las Vegas, Nevada on May 18, 1988 (System File S-46/880616).

 (2) As a consequence of the aforesaid violation, Messrs. J. Rojas and J. Santistevan shall each be allowed:

FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respec_ively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

 Parties to said dispute waived right of appearance at hearing thereon.

 The Claimants were employed as Track Laborers on Division Extra Gang 7865. On May 17, 1988, Division Extra Gang 7865 was abolished, and the Claimants were placed in furlough status on Roster 4018. On May 18, 1988, a System Extra Gang was established under Seniority Group 26, Roster 9026, a separate seniority group from that on which the Claimants were listed. Because the Group 25 Roster w rosters were permitted to apply for such positions.
 Form 1 Award No. 29351
 Page 2 Docket No. MW-28999
 92-3-89-3-418

 As a result, two employees with less seniority than the Claimants were selected for the System Extra Gang. The Organization contends that, under Rule 19, the Claimants were improperly denied the right to be selected for these aositions. Rule 19 reads as follows:





,;hile the pay level of Track Laborers in a Division Extra Gang and a System Extra Gang are identical, the Organization makes a creditable case that movement to the System Extra Gang should be considered a "promotion" in view of the additional seniority rights attached thereto. The issue therefore is whether or not the Claimants had "sufficient" ability and qualifications in order for the selection to be based on seniority.

 During the Claim handling procedure, the Carrier indicated that the Claimants had a "work record showing a history of absenteeism and poor work habits." This was enforced by statements of supervisors who previously supervised the Claimants. The Board must necessarily be guided by the limitation in Rule 19 that "the Management [is] to be the judge with respect to positions covered by this section."

 It is recognized that in this situation the vacancies were not to be filled solely by seniority standing, it being necessary to go outside the Group 26 seniority list. Under these circumstances, the discretionary authority of the Carrier, as p be found that the Carrier acted in an arbitrary or discriminatory manner in this instance.
 Form 1 Award No. 29351
 Page 3 Docket No. MW-28999
 92-3-89-3-418

 The Carrier raises a procedural issue in contending that the Organization failed to appeal the Claim facts involved do not clearly establish violation of Rule 49(a)2.

      Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
      Nancy J. e - Executive Secretary


Dated at Chicago, =111nois, this 25th day of August 1992.

LABOR MEMBER'S DISSENT

TO

AWARD 29351, DOCKET MW-28999

(Referee Marx)


RECEMcil)


    SEP ~' ~~?


THIRD U~ ~~;

The Majority was correct when it determined that "··· The issue therefore is whether or not the Claimants had 'sufficient' ability and qualifications in order for the selection to be based on seniority." However, it was clearly in error when it determined through an unsubstantiated "work record showing a history of absenteeism and poor work habits" constitute insufficient ability and qualifications.


Ability and qualification clearly go to the employee' ability to perform the particular tasks pertinent to the position to which assigned or to the position to which the employe makes application for. In this docket, the employee were attempting to place themselves on System Extra Gang Laborers' positions. The Carrier did not dispute their ability or qualifications to perform


laborers' tasks. Since this record is void of a establishing insufficient ability or qualificati
pertinent Rule seniority should have prevailed and
 should have been sustained.

 ny

 evidence under the this claim

 Assuming arauendo, that the Claimants did have absenteeism problems and "poor work habits", those incidents should have been handled through the discipline procedure. Absenteeism is self explanatory and this Board has handled numerous dockets involving discipline therefor. However, "poor work habits" is an ambiguous
 Labor Member's Dissent
 Award 29351
 Page Two

term and was not explained at all by the Carrier during the handling of this dispute on the property. If that term is to be related to safety rule infractions or perhaps not performing enough work to suit the supervisor, then those actions would be subject to discipline had the Carrier thought them to be serious enough to pursue. Again, this docket is void of any such record for the Claimants. obviously, the Majority did error when it used unsubstantiated disciplinary allegations to deprive the Claimants of a promotion.


      Therefore, this award is palpably erroneous.


                                  Respectfully submitted,


                                  D. 4artholoma

                                  Y

                                  Labor Member