Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43161 Docket No. SG-43635 18-3-NRAB-00003-160347

The Third Division consisted of the regular members and in addition Referee Peter R. Meyers when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(Union Pacific Railroad Company

STATEMENT OF CLAIM:

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

Claim on behalf of G. Ipsen, for placement on the Signalman's position occupied by C.M. Tyner and payment of 80 hours at the Signalman's rate of pay for each two week period he is held off that position, beginning on February 1, 2015, and continuing until this dispute is resolved, account Carrier violated the current Signalmen's Agreement, particularly Rules 30, 32, 41, 43, and 65, when it failed to properly advertise and assign the positions of C.M. Tyner and three other employees who were promoted to Class One effective January 15, 2015, and thereby denied the Claimant the ability to exercise his seniority over these junior employees and gain a position and work schedule he preferred. Carrier's File No. 1623105. General Chairman's File No. N 30 1254. BRS File Case No. 15324-UP."

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.

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

The Organization filed the instant claim on the Claimant's behalf, alleging that the Carrier violated the parties' Agreement when on January 20, 2015, it improperly advertised certain Assistant Signalman positions as Signalman positions and then improperly cancelled the positions before they were awarded, thereby depriving the Claimant of the opportunity to exercise his seniority over more junior employees to obtain a more favorable position. The Carrier denied the claim.

The Organization contends that the instant claim should be sustained in its entirety because the Carrier improperly advertised and then cancelled the positions in question before they were awarded, because there is no cancellation provision in the Agreement, because these positions should have been awarded and the Carrier should be required to re-advertise them, because the Carrier denied the Claimant the ability to exercise his seniority over junior employees to gain a position and work schedule that he preferred, and because the requested remedy is appropriate.

The Carrier contends that the instant claim should be denied in its entirety because the Carrier is not required to maintain positions that it does not need, because the Organization has failed to meet its burden of proof, and because the requested remedy is without merit.

The parties being unable to resolve their dispute, this matter came before the Board.

The Board has reviewed the record in this case, and we find that the Organization has failed to meet its burden of proof that the Carrier violated the Agreement when it did not advertise and assign the position to the Claimant and denied him the ability to exercise his seniority. Therefore, this claim must be denied.

It is fundamental that the Carrier can cancel a bulletined position prior to the assignment. The Carrier determined that it no longer needed the position that was listed in the bulletin. The Carrier is not required to maintain a position that it does not need. It retains the right in the collective bargaining agreement to direct the workforce and to create positions as necessary.

Rule 30 requires the Carrier to put up a new signalman position, but it does not require that that position be filled if it does not need it. The Carrier is utilizing its managerial rights to determine when a position is required.

In Third Division Award 36161, the Board ruled that the Carrier possesses the right to cancel a position that is not needed.

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

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 30th day of May 2018.