The Third Division consisted of the regular members and in addition Referee Dana Edward Eischen when award was rendered.
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.
Under date of September 6, 1996, the Carrier advertised two First Class Work Equipment Maintainer positions on Rail Unit No. 2, to work under Track Supervisor J. E. Gasiecki at Detroit, Michigan, commencing September 23, 1996. Claimant L. R. Marshall and S. M. Ballard, both of whom were then working as Second Class Work Equipment Maintainers, were the only two applicants for the two First Class Work Equipment Maintainer positions. The Carrier properly awarded one of the 1/C positions to Ballard, but bypassed the Claimant and improperly assigned D. A. Edwards, Form 1 Award No. 36070
who failed to make application to fill either of the subject positions, to fill the second position as First Class Work Equipment Maintainer on Rail Unit No. 2.
In the original claim filed October 7,1996, on behalf of Second Class Maintainer L. R. Marshall, the Organization asserted that the Claimant was improperly denied the position of First Class Maintainer on Rail Unit No. 2, citing Agreement Rule 3 Promotion to Official Position, as follows:
During handling on the property, the Carrier acknowledged that the UC Maintainer's position had been improperly awarded to Edwards rather than to the Claimant, placed the Claimant in the 1/C position from October 15, 1996 until that position expired on November 8, 1996, and paid the Claimant the difference in pay between a 2/C Maintainer's position and a 1/C Maintainer's position ($1,38238) for the period from September 23 to November 8,1996, the last day the Maintainer worked on Rail Unit No. 2. However, on grounds that the Claimant had not adequately demonstrated that he was qualified during the approximately 15 days that he had filled the position, the Carrier declined to grant that portion of the claim which sought for the Claimant a 1/C Maintainer's seniority date of September 23,1996.
Careful review of the essentially undisputed evidentiary record persuades the Board that the Organization failed to carry its burden of proof that the Carrier's admitted violation of Rule 3 was not fully remedied during handling on the property and/or that the Carrier failed to give the Claimant a fair opportunity to demonstrate his qualifications and/or that the Carrier abused its vested managerial discretion to determine whether the Claimant demonstrated suffcient ability to meet the practical requirements of the position during the time he held the 1/C position in OctoberNovember 1996. Form 1 Award No. 36070