NATIONAL RAILROAD ADJUSTMENT BOARD
Form 1 THIRD DIVISION
Award No. 31528
Docket No. MW-31363
96-3-93-3-78
The Third Division consisted of the regular members and in addition Referee
Robert L. Hicks when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former
( Oklahoma, Kansas and Texas Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when the Carrier awarded an assistant
foreman position to junior employe K. R. Manry, on Bulletin No.
MKS01601, rather than awarding and assigning Mr. A. S. Bell, HI,
who was senior, available and willing to be assigned thereto (System
File MW-92-13-OKT/920214 OKI).
(2) As a consequence of the violation referred to in Part (1) above, Mr.
A. S. Bell, III shall be compensated '...for the difference in rate
of
pay between that
of
a MKT-OKT-GH&H Track Laborer and an
Assistant Foreman, all overtime hours worked and MKT-OKTGH&H Assistant Foreman seniority rights
13, 1992 and on a continuing basis ...."'
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
Form 1 Award No. 31528
Page 2 Docket No. MW-31363
96-3-93-3-78
Parties to said dispute waived right of appearance at hearing thereon.
On February 6, 1992, Carrier bulletined a temporary seasonal vacancy of
Assistant Foreman.
On February 13, 1992, Carrier canceled the February 6 bulletin stating no
qualified bids were received, and then on the same date, issued the same Assistant
Foreman's vacancy and did accept and assign an employee junior in seniority than
Claimant.
The Organization has filed this grievance contending Claimant was senior in
trackman's seniority than the one assigned; that Claimant was the "most qualified"; and
that "the Carrier officers have a personal vendetta against" Claimant.
The personal vendetta argument is rejected. To establish that allegation, the
Organization must do much more to substantiate its accusation than just saying it is so.
It is true that Claimant is senior to the employee assigned, but after reviewing the
facts, the Board finds no support for the Organization's contention that Claimant was
"the most qualified."
Claimant had been a Foreman, but just 17 days prior to the Assistant Foreman's
vacancy, he resigned his Foreman's rights. It was voluntary, but it was either that or
face a disciplinary hearing for releasing a trackwarrant while there was still equipment
and employees working on the track. They were left without protection. Fortunately,
no one was hurt.
Claimant's disciplinary record shows two dismissals caused by acts of violence
and neglect, displaying a temperament not conducive to leadership and, at times, the
Assistant Foreman functions as a leader.
The Organization has not established that Carrier's actions were arbitrary or
lacking in judgment. The claim will be denied.
Form I Award No. 31528
Page 3 Docket No. MW-31363
96-3-93-3-78
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of July 1996.