Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36289
Docket No. MW-35653
02-3-99-3-569
The Third Division consisted of the regular members and in addition Referee
Richard Mittenthal when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to promote
and assign Mr. T. L. Tatten, Jr. to the Group 7 Eastern District
Track Inspector position advertised in Bulletin EDT01309 on April
30, 1998 and instead assigned junior employee H. J. Swanson
(System File R-9819-101-/1143540).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant T. L. Tatten, Jr. ` . . . must be allowed pay for all wages
lost attributed to this incorrect assignment of the Track Inspector
position. As further indicated, this claim is filed with the
understanding the claim period commenced April 30, 1998, the
date of the assignment, and would continue until such time
Claimant Tatten is allowed to
rill
the referred to assignment and/or
given a Group 8 Eastern District Track Inspector seniority date
and ranking senior to Mr. Swanson."'
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, rinds 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 Award No. 36289
Page 2 Docket No. MW-35653
02-3-99-3-569
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
A Track Inspector opening, Eastern District, was posted in April 1998. That
position is in Seniority Group 7 of the Track Subdepartment. Bids were received from
a number of employees. None of the bidders held seniority as Track Inspector. And
there was no one on the applicable roster who was available and qualified to move to
the Track Inspector opening.
Tatten was one of the bidders. He held seniority as a Track Laborer which is in
Group 18 of the Track Subdepartment. He also held seniority as a Truck Driver and
was working as a Truck Driver in April 1998. As such, he was involved with track
maintenance and he claims he was qualified to restore and rework track as well,
although he had never filled the Track Inspector job. Swanson was also one of the
bidders. He was then serving as a Sectionman and held seniority in that position,
Group 17 of the Track Subdepartment. He also held seniority, effective August 1997,
as a Track Foreman and Assistant Foreman.
The Carrier awarded the Track Inspector opening to Swanson even though he
had less seniority than Tatter The Organization insists this was a violation of Tatten's
seniority rights under Rules 19 and 20 which read in part:
"Rule 19 - (a) Promotion shall be based on ability, qualifications, and
capacity for greater responsibility and where those requirements are
sufficient, seniority shall prevail. (b) Positions of foremen and supgryiso
will be filled by Rromotion of available qualified employees. Positions of
foremen or supervisors . . . that are not tilled through buffetining to
employees in seniority class, will be filled from available qualified
employees in the other classes of the seniority group, and in the event not
so filled wilt be sped from available qualified etpplovees in the other
grouQfn of the subdeRartment, and where ability and qualifications are
sufficient. seniority shall prevail the Management to be the judge with
resRect to positions covered by this section ....
Form 1 Award No. 36289
Page 3 Docket No. MW-35653
02-3-99-3-569
Rule 20 - (e) . . . In the event there are no qualified employees furloughed
or regularly assigned in a lower class, the vacancy or new position may be
filled in accordance with the provisions of Rule 19(b). . . :' (Emphasis
added)
If seniority alone were the controlling consideration here, Tatten would
obviously prevail. However, when the parties agreed to establish a Track Inspector
position in their December 28, 1959 Letter Agreement, they also agreed on a number
of principles to be followed in dealing with Track Inspector openings. One of those
principles, found in paragraph 4 of the Letter Agreement reads in part:
"Track Inspector positions will be filled from employees. selected by
Management, who hold seniority in . . . Seniority Groun . . . covering
Section and Extra Gang Foremen, Assistant Section and Extra Gang
Foremen, Rock Patrol remen, and Fire Patrol Foremen . . . ."
(Emphasis added)
Because Swanson held seniority as a Track Foreman and an Assistant Foreman
before the Track Inspector opening was posted in April 1998, the Carrier plainly had
a right to prefer Swanson over others who did not 6t this paragraph 4 condition. The
Track Inspector opening "will be filled... " by the Carrier from among those who hold
seniority as Foremen. That principle was not overridden by Rules 19 and 20. The
specific language of paragraph 4 of the Letter Agreement trumps the general language
of Rules 19 and 20.
Hence, the Carrier was within its rights i n selecting Swanson, a junior employee,
rather than Tatten to fill the Track Inspector opening. Indeed, Rule 19 states that the
Carrier "[shall] be the judge.. . " regarding the "qualifications" of those who bid for
a Foreman opening. There has been no violation of the Rules.
AWARD
Claim denied.
Form 1 Award No. 36289
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02-3-99-3-569
QBD$
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 28th day of October 2002.