Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 34039
Docket No. MW-33230
00-3-96-3-697
The Third Division consisted of the regular members and in addition Referee
Robert L. Hicks when award was rendered.
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
(Brotherhood of Maintenance of Way Employes
(Burlington Northern Railroad Company
( (former St. Louis - San Francisco Railway Company)
"Claim of the System Committee
of
the Brotherhood that:
(1) The Agreement was violated when the Carrier assigned junior
employe H. D. Barger to fill temporary foreman vacancies at the
Welding Plant in Springfield, Missouri beginning July 1, 1993 and
continuing, instead
of
assigning Mr. J. M. Gambriel who holds
foreman's seniority and was working in the lower classification
of
trackman during the period involved here (System File B-858
1/MWC 94-02-23AA SLF).
(2) As a consequence
of
the violation referred to in Part (1) above,
Claimant J. M. Gambriel shall be compensated at the foreman's
rate of pay for all time worked, including overtime, by Mr. Barger
beginning sixty (60) days retroactive from the date of December 22,
1993 and continuing."
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.
Form 1
Page 2
herein.
Award No. 34039
Docket No. MW-33230
00-3-96-3-697
This Division of the Adjustment Board has jurisdiction over the dispute involved
Parties to said dispute were given due notice of hearing thereon.
The Welding Plant in Springfield, Missouri, has a set of Agreement Rules
applicable only to the facility and the employees working thereat.
Agreement MW-32 refers specifically to the Rail Welding Plant at Springfield.
Item 1 of that Agreement reads:
"1. Position
of
foreman on each of these two gangs will be filled in
accordance with the provisions contained in paragraphs (a)(1) and (2) of
Rule 40 of the Agreement effective August 1, 1975."
Rule 40(a)(1) and (2) read as follows:
"(a) Positions
of
foreman and assistant foreman in the system rail laying
gang will not be subject to the seniority and promotion rules of this
agreement. Permanent vacancies on these positions will be filled in
accordance with the following:
(1) During the month of July in each calendar year any
employe holding seniority as foreman in the Track Subdepartment or System Rail Laying Sub-department
desiring to be considered for position of foreman or assistant
foreman in the system rail laying gang will indicate such a
desire in a letter to the Chief Engineer.
(2) As permanent vacancies occur on positions of foreman or
assistant foreman on the system rail laying gang,
consideration will be given to those employes who have
requested that they be considered for such assignments as
provided in paragraph (a) above, with due regard to their
ability and merit to fill the position."
Form 1
Page 3
Award No. 34039
Docket No. MW-33230
00-3-96-3-697
When the Organization first presented the claim, no Rule was cited as having
been violated. When challenged by the Carrier, it cited Rule 39, which is the mechanism
used by track employees to till temporary Foreman vacancies. Rule 39 is not applicable
to the two gangs working at Springfield.
Item 1 of the MW-32 Agreement covers the filling of Foreman vacancies, and
because the parties who drafted MW-32 did not differentiate between temporary and
permanent vacancies, it is clear to the Board that both parties to the Agreement fully
agreed that any Foreman vacancy, temporary or permanent, would be filled without
regard to seniority.
Furthermore, the Carrier repeatedly advised the Claimant that if he was
interested in the Foreman's position on the Welding Gang, he should gain some
experience by working thereon as a Laborer, like the others have who do work as
Foremen. Although the Claimant's letter of February 28, 1994 accuses the Carrier of
disrespecting his seniority, when he had the opportunity to displace on the gang as a
Laborer to gain the experience the Carrier believed he needed, the Claimant elected to
go on furlough.
Despite the Carrier's reason for not appointing the Claimant to the Foreman's
position, the concise language of the special Agreement MW-32 clearly supports the
Carrier's position. The Carrier does have the right to appoint whomever it believes is
best qualified without regard to seniority.
AWARD
Claim denied.
ORDER
This Board, after consideration ofthe 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 May, 2000.