These claims were filed by the Claimants on January 15, 1998 protesting their force assignments to the Assistant Foreman/Assistant Inspector positions in Perryville, Maryland, when there were bidders for the position who could have been tested, and the removal of their names from the Assistant Foreman/Assistant Inspector roster as a result of their refusal to accept the position. They claim a precedent on the property not to force assign under Rule 12(t) unless no bids were received or the tested employee failed the examination, and cite examples of such.
The Organization argues that these positions should not have been considered vacancies under Rule 12(f) because there were bidders who could have been tested for the position, and that there was no requirement to force assign in these circumstances. It notes a ten year precedent of testing applicants to permit promotions prior to force assigning employees not working in the classification. The Carrier contends that there were no qualified applicants for the position, and that its assignments were in accordance with Rule 12(f). It asserts that a few.instances where management did not strictly apply Rule 12(f) and tested applicants for positions, does not constitute a past practice, which, in .any event, could not supersede clear and unambiguous contract language, citing First Division Award 20841.
There is no dispute that there were two bidders for the Assistant Foreman/Assistant Inspector positions in dispute, neither of which was previously qualified in that classification, the Carrier did not test them to determine if they were qualified, the Claimants were working in a lower class at the time and did not accept the assignments to these positions, and their names were removed from the Assistant Foreman/Assistant Inspector roster.
A careful review of the record convinces the Board that the Claimants' refusal to accept these assignments was based upon their understanding of the procedure followed in the past by the Carrier in permitting unqualified bidders the opportunity to Form 1 Award No. 35755
test and qualify for promotion into the Assistant Foreman/Assistant Inspector classification prior to force assigning roster employees presently working as Maintainers. Whether the instances cited by the Claimants constitute a past practice, it appears that the Claimants were unaware that the Carrier's testing policy does not automatically extend to the Assistant Foreman classification as it does to the Signalman and Maintainer classifications. Thus, on the basis of the particular facts in this case, despite the Carrier's proper application of the provisions of Rule 12(t), the Board believes it appropriate to reinstate the Claimants' seniority on the Assistant Foreman/Assistant Inspector roster due to their impression that a vacancy in this classification was filled the same way as vacancies in the Maintainer and Signalman classifications. However, the clear language of Rule 12(f) requires the Claimants to accept these positions in the future, if there are no qualified bidders at the time, or forfeit their seniority.
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.