Claimant possesses a Group 26 System Gang Foreman seniority date of February 14, 1979, while J. Becker possesses a Group 26 System Gang Foreman seniority date of July 1, 2004. Moreover, the assignment bulletin that reflects these seniority dates also clearly indicates the Claimant's status as a qualified employee.

The Organization contends that by virtue of his superior Group 26 System Gang Foreman seniority, the Claimant unquestionably was the senior qualified applicant, and he should have been assigned to the disputed position. The Organization submits that the Carrier's failure and refusal to recognize the Claimant's superior seniority was a direct violation of Section 4. The Organization suggests that the Board need look no further than the clear and unambiguous language of Section 4 to sustain this claim. The Organization then points to a number of prior Awards that fully support and acknowledge the principle of seniority and an employee's basic right to exercise earned seniority in accordance with the Agreement.

Addressing the Carrier's reliance on Rules 19 and 20 and the principles set forth in Awards 27, 28 and 29 issued by Public Law Board No. 6302, the Organization maintains that all are inapplicable to the instant dispute. The Organization asserts that whatever rights the Carrier might have assumed under Rules 19 and 20 in making assignments to Classes A and B of Group 26 prior to June 1, 1998, the Carrier negotiated away those rights when the parties agreed to the 1998 Implementing Agreement, which evolved into Appendix T of the current Agreement. The Organization emphasizes that Appendix T specifically outlines how assignments are to be made for Group 20, 26, and 27 positions. Moreover, the parties agreed, in Side Letter No. 15 to Appendix T, that Appendix T would apply in the event of any conflicts between it and the current Agreement.

The Organization argues that there is a conflict between the terms of the current Agreement and Appendix T. Under Side Letter No. 15, Appendix T will apply. The Organization submits that if the Carrier had wished to preserve its perceived Rule 20(1) right to select employees for service in Class A and/or B in Group 26, it would have been a simple matter to incorporate such language into Appendix T.

The Organization asserts that because Rule 20(l) is not the controlling provision of the Agreement, then it follows that the three PLB 6302 Awards cited by the Carrier, and the doctrine of stare decisis, have no applicability to the instant dispute because those decisions relied on the express language of Rule 20(l).

The Organization notes that the assignment bulletin clearly lists no fewer than four qualified bidders. The Organization contends that the Carrier cannot pick and choose among qualified bidders, but is bound by the seniority provisions of the Agreement. There is no ambiguity in these provisions, and there is no doubt that the Claimant is the senior qualified employee. Accordingly, the Organization asserts that the instant claim must be sustained.

The Organization goes on to argue that the remedy requested would make the Claimant whole for what he lost as a result of the Carrier's violations in this matter. The Organization submits that the requested remedy is entirely proper and in keeping with the "make whole" principle.

The Organization ultimately contends that the instant claim should be sustained in its entirety.

The Carrier initially contends that it correctly applied the Agreement when it continued to exercise its managerial prerogative to assign a System Gang Foreman and Assistant Foreman in accordance with Rules 19 and 20 of the Agreement. The Carrier asserts that before and after the signing of the Implementing Agreement in 1998, it continued to make those assignments as these Rules have been interpreted by three on-point decisions issued by PLB 6302. The Carrier argues that the Organization's arguments are misplaced, and this matter can be dismissed under the principle of stare decisis. The Carrier argues that because this issue previously has been decided, it simply is not an Agreement violation for the Carrier to assign the positions of Foreman and Assistant Foreman on its high production system gangs to the employees who are qualified in that class, regardless of seniority date.

As for the Organization's position that these prior Awards do not apply because they pre-date the 1998 Implementing Agreement, the Carrier acknowledges that PLB 6302's three Awards on this issue were issued in 1997. The Carrier points

out, however, that PLB 6302 issued an Award in 2001, three years after the signing of the Implementing Agreement, that affirmed the holding in the earlier Awards. The Carrier insists that these Awards clearly are on point and controlling in this matter.

The Carrier contends that because the issue presented here previously has been settled by PLB 6302, the Board is justified in dismissing this case under the doctrine of stare decisis. With a controlling Award, there is no reason for the Board to charter new territory.

The Carrier contends that this matter involves the Claimant's desire to be promoted to a System Gang Material Foreman position for which he did not have the qualifications. The Carrier points out that the Organization has not shown that the Claimant was qualified, nor did the Organization contradict that such assignments consistently have been made in accordance with Rules 19 and 20. The Carrier argues that it has always had the right to select employees for Foreman assignments on its System Gangs, pursuant to provisions that have remained in the parties' Agreements for at least 70 years.

The Carrier emphasizes that prior Third Division Awards demonstrate that promotion is not strictly a seniority Rule, as the Organization suggests, but instead there are variables that make up the criteria for being promoted. The Carrier submits that if it did not have this management right, then the consequences and impact would be hard to imagine. The Carrier further argues that it only is in recent years that the Organization has taken it upon itself to challenge this 70-yearold Rule.

The Carrier contends that the parties could have stricken Rule 19(f) from their Agreement when it was revised in 1992 and reprinted in 2001. Moreover, the parties could have stricken this language in the 1998 Implementing Agreement if it was not to apply. They did so in addressing other specific Rules. The Carrier submits that because this did not occur, Rule 19(f) is a very viable Rule.

The Carrier goes on to assert that the assignment of an employee other than the Claimant to the disputed position was proper and in accordance with the

Agreement. The Carrier argues that the Organization never refuted that the Agreement was not violated and that the Claimant was handled no differently than countless other employees in the past.

The Carrier further contends that there is no language anywhere in Rule 20 or in Appendix T that supersedes the language and application of Rule 20(1). The Carrier contends that the Carrier accordingly preserved its rights in filling System Gang Foreman positions.

The Carrier insists that because the Claimant had no qualifications or specialization as a System Gang Material Foreman, the decision to appoint another employee to this position was neither arbitrary nor capricious. Under these circumstances, there was no Agreement requirement to promote the Claimant to the subject position. The Carrier insists that it is not required to award such a position blindly based on seniority and afford the applicant 30 days in which to qualify. The Carrier emphasizes that it has the managerial right to pass on applicants' lack of qualifications prior to assigning them to a System Foreman position.

The Carrier points out that the Organization never established that the Claimant had worked any of the positions and, therefore, was not qualified on the System Foreman positions. The Carrier reiterates that its actions were not arbitrary, capricious, or an abuse of discretion, and it treated the Claimant in the same manner as countless other individuals in the same situation.

The Carrier submits that it is in complete compliance with the Agreement language when it is read as a whole. The Carrier suggests that in placing its reliance on Section 4 of Appendix T, the Organization elected to ignore the absence of any language indicating that Section 4 would supersede the other Rules of the Agreement. The Carrier submits that Section 4 is only used as a tie-breaker when all qualifications are equal and seniority was established by all of the bidders prior to January 1, 1998. The Carrier insists that the Organization seriously misrepresented Section 4 of Appendix T. The Carrier argues that the Agreement must be read and interpreted as written and applied over the years.

Citing prior Awards, the Carrier suggests that it is not the role of the Board to write Agreement language. The Board is to interpret existing language, and the Agreement must be applied as written.

The Carrier argues that the Organization failed to support its claim with proof. As found in prior Awards, the Organization must prove a definite violation of the Agreement. The Carrier contends that the Organization failed to meet its burden of proof, so there is no basis for sustaining this claim.

entirety.

The Board carefully reviewed the record evidence and concludes that the Organization failed to meet its burden of proof that the Carrier acted in violation of the Agreement when it did not assign the Claimant to the Foreman position on System Gang 9086 and instead assigned a junior employee to that position. Therefore, the claim must be denied.

Material Gang Foreman position had experience working on that job and that the Claimant had never worked on that position. The Agreement which governs that particular assignment allows the Carrier to select qualified employees for the System Gang Foreman positions. Moreover, in recent Third Division Award 39299, the Board held that the Carrier had the right to assign a junior qualified employee who had previous experience on that position. The Board wrote the following:

"The Board has no intention of disturbing this precedent. If the Claimant did not have the requisite experience, the Carrier was within its rights to bypass him, no matter the obviously high caliber of his record."

See also Awards 28 and 29 of Public Law Board No. 6302.

For all of the above reasons, the claim must be denied.

AWARD