"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when, on December 10, 1998, it awarded Mr. M. Abercrombie the position of foreman on B&B Crew 616, instead of assigning Mr. G. D. Day in recognition of his superior seniority (System File R1.373/800375).

(2) As a consequence of the violation referred to in Part (1) above, the Carrier must now correct Bulletin No. 268A, dated December 10, 1998, to properly award the B&B Crew 616 foreman assignment to Claimant G. D. Day and the Carrier shall allow the Claimant any seniority rights and all other rights and benefits lost to him as a result thereof, including compensation for all lost wages beginning December 10, 1998 and continuing."

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.

Parties to said dispute were given due notice of hearing thereon.

The material facts show that the November 20, 1998 bulletin for Foreman on Crew 616 was awarded on December 10, 1998 to M. Abercrombie - an employee junior to the Claimant. That position had previously been bulletined on September 16 and October 26, 1998 and closed because of lack of qualified bidders, which included the Claimant.

The bulletined Foreman's position on Crew 616 required the applicant to have a commercial driver's license - which the Claimant did not have, but Abercrombie did. This claim followed because the Claimant did not receive the position.

Because the Claimant did not have a CDL, no Rule violation can be found.

The factual assertion by the Organization that the Claimant was told that he did not need a CDL is in dispute and, therefore, does not change the result. Nor does the fact that the Claimant obtained an instruction permit change the result. The Foreman's position required a CDL, not a permit. Given the position in dispute, the requirement for the successful applicant to have a CDL was a reasonable one.

The Claimant's prior work on the gang also does not change the result. The Carrier determined that the position required a CDL. The Claimant did not have one. The claim therefore lacks merit. See Third Division 26295:

"The record is clear that the Claimant did not meet the required qualifications for the job in that he did not possess a valid driver's license. Although the Organization argues that the Claimant

Third Division Award 36286 cited by the Organization is not persuasive. There, the employee obtained his CDL less than 30 days after he was advised that he was being removed from his job as a Grinder Operator due to lack of a CDL which prevented the employee from operating two of the gang's five trucks. According to the Board, "[t]he latter removal was his initial notice of a need for a CDL." That is not this case. The Claimant was long aware of the requirement that he needed a CDL. Prior bids of September 16 and October 26, 1998 (which were closed for lack of qualified bidders, which included the Claimant) specified the requirement of the need for a CDL. The Claimant was not caught unaware of the requirement when the same requirement again appeared in the November 20, 1998 bulletin in dispute.

AWARD