Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37012
Docket No. SG-36854
04-3-01-3-401
The Third Division consisted of the regular members and in addition Referee
Robert Perkovich when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad Company, Inc.
STATEMENT OF CLAIM
:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Grand Trunk Western Railroad (GTW):
Continuing claim on behalf of Robert A. Feasel for payment of the
difference in pay between his present position and that of Signal
Foreman beginning on June 1, 2000, and continuing for the term of the
violation. Carrier should also be required to assign the Claimant to the
position of Signal Foreman as advertised on Bulletin No. 3-A. Account
Carrier violated the current Signalmen's Agreement, particularly
Rules 35 and 37 when on June 1, 2000, Carrier awarded the position to
a junior employee. Carrier's File No. 8390-1-127. General Chairman's
File No. 00-42-GTW. BRS File Case No. 11675-GTW."
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Form 1 Award No. 37012
Page 2 Docket No. SG-36854
04-3-01-3-401
Parties to said dispute were given due notice of hearing thereon.
On July 9, 1998, the Claimant voluntarily entered into an agreement with the
Carrier in which he agreed to waive an Investigation and to accept discipline of
disqualifying himself from holding a territory position and agreed to remain on
position under supervisory authority until revoked by the Signal Department
Supervisor. Moreover, he acknowledged in the agreement that he so agreed after
having consulted a representative of the Organization. On or about June 1, 2000 the
Claimant sought assignment to a Signal Foreman position. The Carrier refused to
assign him and instead assigned a junior employee. At the time, his agreement signed
in 1998 had not yet been revoked.
The governing Rule in this dispute is Rule 35. It clearly requires that an
employee seeking a promotion must be able to perform the job in question. In this
instance, the Claimant was not able because he had voluntarily disqualified himself
from holding any position that was not under supervisory authority. Because the
position in question was one such position, the Claimant was not able and therefore,
despite his seniority, the Carrier properly denied him the Signal Foreman position in
question.
The Organization also relies on Rule 37. However, that Rule does not apply
because on its face it applies only to those employees who have accepted a promotion.
As noted above, the Claimant was not able, was not offered the promotion, and,
therefore, did not accept the promotion.
AWARD
Claim denied.
ORDER
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 18th day of May 2004.