Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 41043
Docket No. MW-40882
11-3-NRAB-00003-090170
The Third Division consisted of the regular members and in addition Referee
PARTIES TO DISPUTE:
STATEMENT OF C,'
Sherwood Malamud when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
{ IBT Rail Conference
{Union Pacific Railroad Company (former Missouri
Pacific Railroad Company)
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and
refused to assign Mr. M. Galvan, Jr. to foreman position on
Gang 3065 advertised on Bulletin 1779 and instead assigned
junior employe H. Cruz (System File MW-07-1541149144?
MPR).
(2) As a consequence of the violation referred to in Part (1) above,
the Carrier shall now correct Bulletin 1?79 to show Claimant
M. Galvan, Jr. as the assignee and with seniority as foreman on
the applicable roster and the Claimant shall be compensated
for the difference in pay between what he earned and what he
would have earned had he been properly assigned to the
aforesaid foreman position beginning November 9, 2007 and
continuing."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 41043
Page 2 Docket No. MW-40882
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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.
Bulletin No. 1779 issued October 26, 2007, advertised a permanent Track
Foreman position on Gang 3065 effective November 9, 2007. When no employee
holding seniority in the Foreman classification bid for the position, the Carrier
promoted H. Cruz, who is junior to Claimant M. Galvan, Jr. Both held seniority in
the Assistant Foreman classification at the time the promotion decision was made.
The Organization timely filed this claim. The Carrier lists the Claimant as
"Qualified" on the bid form to fill the position.
Rules 19 (a) and (b) as well as Rule 20 (b) are the operative provisions that
govern the determination of this claim. The Rules provide, as follows:
"Rule 19. (a) Promotions will be based on ability, merit and
seniority. Ability and merit being sufficient, seniority will prevail,
the management to be the judge subject to appeal."
(b) In the application of this Rule, the senior employee in the next
lower classification within the sub-department will be given
preference with due regard to their ability and merit in filling
vacancies in higher classifications.
Rule 20 (b) When vacancies advertised under this Rule are not filled
by reason of no bids from qualified employees, the position will be
filled by (1) appointment of the junior unassigned qualified
employee in that classification; (2) appointment of the junior
qualified employee, from the next lower classification; or (3) the
hiring of a new employee, in that order."
Form 1 Award No. 41043
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The Organization argues that the record evidence establishes that the
Claimant is the senior qualified employee in the next lower classification. According
to the Organization, he should have been promoted to the Foreman position on Rail
Gang 3065 in November 2007.
The Carrier argues that the Claimant was not qualified to fill the position. It
relies on a statement filed by Manager of Track Maintenance (MTM) Tyk provided
by the Carrier during the on- property handling of this claim:
"After some investigating on Mr. Galvan's past work history I feel
that the right decision was made. He lacks the leadership skills it
takes to operate The Todays RailRoad (sic). Not saying he will
never get there but at the time I feel he wasn't ready."
The Carrier notes in its arguments that the Claimant was disqualified from
an Assistant Foreman position. That disqualification is not in dispute. The record
is devoid of any evidence as to when he was disqualified or the reason for the
disqualification. The Organization acknowledges that the Claimant was
disqualified from System Curve Gang 9112 but notes that Gang 3065 is a Rail Gang.
The Board's mode of analysis regarding a promotional claim was set forth in
Third Division Award 36902 as follows:
"In line with consistent determinations made over many years, the
Board finds that once the Carrier stated that the Claimant lacked
the fitness and ability for the position, its burden of proof shifted to
the Organization to demonstrate by sufficient probative evidence
that the Carrier's actions were in error."
The Organization failed to submit any evidence to address this shifting
burden. It did not submit any evidence to rebut the Carrier's contention that the
Claimant lacked the leadership skills necessary for the Foreman position. The
Carrier had a rational basis for its decision. Third Division Award 10403 cited
Third Division Award 3273 wherein the Board held: "Where there is evidence,
which if believed, is sufficient fitness and ability for the position sought, the
judgment of the Carrier will not be disturbed." The Board concludes that the
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Organization did not present sufficient evidence in this case to disturb the Carrier's
determination.
AWARD
Claim denied.
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 23rd day of August 2011.