This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Carrier issued Bulletin No. 14 on May 17, 1993 for Track Foreman, System Gang #1. Beginning on June 3, 1993, the Carrier force assigned employee J. J. Wilson who held Track Foreman seniority to the position. The instant claim was filed on behalf of the senior employee who bid for the position. The Organization argues that there is no Agreement provision to force assign an employee who did not bid the position in preference to those who properly bid. The Organization insists that the Agreement was violated when the Claimant, who had properly placed a bid seeking promotion was denied his seniority rights and the Carrier improperly assigned the position to Track Foreman Wilson who did not bid. The Organization argues that such action had never before occurred.
The Carrier argues that its action has Agreement support from Rule 8 which states that:
The Claimant held no seniority as Track Foreman and was therefore not denied his seniority. Under the first sentence of the Rule supra, the employee holding the Foreman's seniority was assigned.
In addition, the Carrier maintains agreement support from the Memorandum of Agreement effective July 1, 1989 which established a "force rule" applicable hereto. The Carrier holds that after June 19, 1989, all employees had to protect their seniority, with exception, inapplicable herein. In this case, Track Foreman Wilson, with seniority date of April 21,1992, had Foreman's seniority and was properly assigned in line with his seniority.
The Board has carefully read the applicable provisions of the Agreement including Rule 8 and 13 in particular. We have also carefully read the Memorandum Form 1 Award No. 32398
of Agreement between the Terminal Railroad Association of St. Louis and the Brotherhood of Maintenance of Way Employees dated July 1, 1989. We note that both parties disputing the language, applicability and meaning of the Memorandum are the negotiators and signatories of the agreement.
The full Agreement has no language force assigning employees to positions. While Rule 8 supra, includes the above Carrier stressed language, when coupled with the bulletin provision Rule 13 and the full Agreement, it contains no force assignment right. Rule 13 states that the vacancy will be bulletined "in an effort to have the successful bidder available when the position starts" and contains other applicable language to include posting to permit employees to have knowledge of and file for such positions before "assignment of successful bidders." Rule 8 gives seniority rank priority, but does not force an employee who did not bid to take the position.
The Board has studied the language of the Memorandum for evidence of applicability to support the Carrier's decision and we can find none. The Memorandum does not apply to Mr. Wilson as he did not attempt displacement. We also find no rebuttal to the Organization's assertion that:
The Board finds that the Carrier's position lacks merit. Neither the Agreement nor Memorandum contains clear language permitting force assignment under the conditions of this claim. The position was bulletined and could be filled by applicants first who held seniority in rank and then by lower ranks having appropriate ability and seniority. The Claimant's rights were violated when the Carrier force assigned an employee who did not bid the position. The 1994 Seniority Roster indicates that Claimant was awarded Foreman Seniority on July 22, 1993 and the Board finds that the claim is payable until such date.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.