"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the Union Pacific Railroad:

Claim on behalf of G. D. Ryan, for $145.60, the difference in pay between signal foreman and signalman, account Carrier violated the current Signalmen's Agreement, particularly Rules 26 and 80, when on February 10, 11, 12 and 13, 2003, the Claimant's signal foreman was on vacation and Carrier assigned a junior man to relieve the foreman's position instead of assigning the Claimant who was the senior Class I employee on the gang and has been assigned to relieve the foreman's position in the past. Carrier's File No. 1359819. General Chairman's File No. W-26-248. BRS File Case No. 12842UP."

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

This case requires an interpretation and application of Rule 26 -

"When Signal Gang Foremen are off during vacation periods, or for other reasons, they will be relieved by the Assistant Signal Foreman or Lead Signalman assigned to that gang, if available. If not available, they will be relieved by the senior qualified employee in Class 1 assigned to the Signal Gang.

When Signal Maintainers or Signal Maintenance Foremen are off for periods that exceed one week in duration, they will, if relieved, be relieved by the Relief Signal Employee; and if not available, the senior qualified employee of Class 1 assigned to the Signal or Maintenance Gang.

The Carrier will make every effort to provide vacation relief on Signal Maintainer positions when the incumbent is off duty longer than one week."

The Claimant in this case was regularly assigned as a Signalman on Signal Gang No. 5780. On the four dates specified in the Statement of Claim, the Foreman of the gang was absent from the gang. The Assistant Foreman assigned to the gang was also absent from the gang. To fill the Foreman position on these four dates, the Carrier assigned a Signalman member of the gang who was junior in seniority to the Claimant.

It is the Organization's position that the Claimant had greater seniority than did the Signalman who was used to fill the Foreman vacancy; that the Claimant had in the past been used to relieve the Foreman's position and was, therefore, qualified to do so; and that the language of Rule 26 clearly requires the use of the senior qualified Class 1 employee assigned to the gang to be used to relieve the Foreman in his absence.

The Carrier in its denial of the claim stated that "Management felt Signalman Romo was qualified and therefore he was assigned these duties." This, the Carrier contends, was its managerial prerogative.

At no time during the on-property handling of this dispute did the Carrier refute the Organization's contention that the Claimant had in the past been used to relieve the Foreman position. At no time during the on-property handling of this dispute did the Carrier state or otherwise indicate that the Claimant was not qualified to relieve the Foreman position. Rather, the Carrier nit-picked the Organization's claim by arguing that the Foreman was not, in fact, on vacation as contended by the Organization, but rather was absent from his position attending a training program. The Carrier further argued that "The Foreman would have to be absent for six days, which is longer than one week, for this rule to apply."

Both of these arguments are unconvincing.

There is no disagreement that the Carrier does possess the right to determine qualifications. However, this determination does not exist in a vacuum. See Third Division Awards 11633 and 12931.

It is also an established principle that material assertions made by either party and not refuted on the property must be accepted as fact. See Third Division Awards 28459 and 30460.

In this case, the Carrier never refuted the Organization's contention that the Claimant had in fact previously relieved the Foreman. In this case, the Carrier never specifically contended that the Claimant was not qualified to serve as Foreman. Therefore, the Board is left with the language of the Rule which in its initial paragraph sets forth the measure that applies in this case. That is:

"If not available, they will be relived by the senior qualified employee in Class 1 assigned to the Signal Gang." (Emphasis added)

The Carrier's argument relative to the second paragraph of Rule 26 is misplaced and not applicable in this case.

It is the Board's conclusion on the basis of the case record that the Claimant was the senior qualified employee in Class 1 assigned to the Signal Gang and should have been used to fill the Foreman vacancy on the dates in question.

The claim as listed is sustained.

AWARD