The Third Division consisted of the regular members and in addition Referee Margo R. Newman when award was rendered.
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.
The issue presented by this claim - whether the Carrier violated the Claimant's seniority rights when it promoted a junior employee to the Group 6 Section Tie and Rail Inspector position - is the same as the one raised in Third Division Award 40941. The record on the property contains similar arguments and exhibits as were presented in that case, and its resolution also involves the interpretation of Rule 19.
The facts are also similar. In this case the Carrier advertised three Group 6 Section Tie and Rail Inspector positions for Gang 9089 in March 2008. One assignment was made to an employee with less Track Sub-department seniority than the Claimant. There is no dispute that neither employee had seniority in the classification. The Carrier explained that it determined that the Claimant was not qualified because, in accord with historical practice, it considered previous Foreman or Assistant Foreman seniority as one of the qualifications of the position because it shows that the employee is qualified to supervise the restoration and renewal of track and has familiarity with use of the computer, a skill also required in the Inspector position. It presented evidence of its consistent application of such practice. Because the Claimant had no Foreman seniority, and only worked as a Track Machine Operator, Welder and Sectionman, and the junior employee assigned the position had previous Foreman and Assistant Foreman seniority and experience, the Carrier concluded that the junior employee was the senior qualified bidder on the position. This claim protests such determination and the Carrier's Form 1
The positions of the parties in this case are the same as those contained in Award 40941, and are incorporated into this Award. A careful review of the record convinces the Board that the rationale set forth in Award 40941 is equally applicable herein, and that this claim must also be denied because the Organization failed to meet its burden of proving that the Claimant was qualified, or that the qualification determination made by the Carrier in this case was arbitrary, unreasonable or capricious.
