NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION Award No. 29648
Docket No. MW-29917
93-3-91-3-299
The Third Division consisted of the regular members and in
addition Referee Hugh G. Duffy when award was rendered.
(Brotherhood of Maintenance
(of Way Employes
PARTIES TO DISPUTE:
(Kansas City Southern Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned
a junior employe to assistant foreman's position
advertised in KCS Bulletin No. 23, dated February 21,
1990, instead of assigning Track Laborer J. Hayes thereto
(Carrier's File 013.31-369(3)).
(2) As a consequence of the aforesaid violation, Track
Laborer J. Hayes shall be allowed the difference in pay
as between his regularly assigned rate of pay and that of
the above-described assistant foreman position beginning
on March 7, 1990 and seniority as assistant track foreman
dating from the first day of junior employe O'Donnell's
service in said position."
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 respectively carrier and employe 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.
Form 1 Award No. 29648
Page 2 Docket No. MW-29917
93-3-91-3-299
This dispute arose after the Carrier promoted an Apprentice
Foreman who was Junior to Claimant to the position of Assistant
Foreman. The Organization asserts that Claimant, should have been
awarded the position under the provisions of Rule 10.
Rule 10, in pertinent part, reads as follows:
"Promotions from and to positions covered by this
agreement should be based on ability, merit and
seniority. Ability and merit being satisfactory,
in the judgment of the management, seniority
shall prevail."
In its denial letter on April 20, 1990, the Carrier stated
that "In Management's judgment claimant does not possess the
necessary fitness and ability to perform the duties of the position
claimed." The organization asserts that in its opinion Claimant is
qualified for the position.
The Carrier by letter of June 6, 1990, also made the material
assertion that the past practice on the property is to give
preference in promotions to Apprentice Foreman over Laborers. The
organization did not rebut this assertion and it thus stand as
established fact.
Under well-established precedents, the Organization has the
burden of proving that the Claimant was qualified and that the
Carrier acted in an arbitrary and unreasonable manner (see Third
Division Award 28008). No such showing was made in this case and
we will therefore deny the claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
~~
Nancy J ver - Secretary to the Board
Dated at Chicago, Illinois, this 7th day of June, 1993.