Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43795 Docket No. SG-44408 19-3-NRAB-00003-170527

The Third Division consisted of the regular members and in addition Referee Andria S. Knapp when award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(CSX Transportation, Inc.

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the CSX Transportation (formerly C&O, Chesapeake District):

Claim on behalf of A.J. Ginn, for the difference in pay between that of a Lead Signalman's Position, and that of a Signal Foreman's Position starting on January 15, 2016, continuing until this dispute is resolved, and for the immediate advertisement of the Foreman's Position for Force 7XD1; account Carrier violated the current Signalmen's Agreement, particularly Rule 50, when it failed to bulletin the Foreman's Position for Force 7XD1 after it became vacant. Carrier's File No. 2016-202628. General Chairman's File No. 16-15-CD. BRS File Case No. 15614-C&O(CD)."

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.

Rule 50, Bulletining Positions, states in relevant part:

"(a) Except as provided in Rule 5 new positions and vacancies will be

bulletined within thirty days previous to or ten days following the date such vacancies occur, except that temporary vacancies need not be bulletined until the expiration of thirty days from the date such vacancies occur, unless it is apparent that the temporary vacancy will be in excess of thirty days.

. . . . ."

Rule 50 was clarified with the Uniform Advertisement/Award Cycle, which reads, in relevant part:

"All new positions and/or vacancies must be advertised or re-advertised, awarded or proper abolishment notice posted by CSXT."

At the time this dispute arose, the Claimant was assigned as a Lead Signalman on a Signal Construction Gang on the former C&O--Chesapeake District system. On or about January 8, 2016, the incumbent Signal Foreman for Force 7XD1, Carl Warnock, retired. All of the phases of the New River construction project on which he had been working had been completed. The Carrier determined that the position was no longer needed and would be eliminated when Warnock retired. Due to a clerical error, however, the procedure for abolishing the position was not immediately initiated and the position was not administratively abolished directly upon the incumbent's retirement. The Carrier did not post the position for bid because, from its perspective, there was no vacancy to fill. The Organization filed a claim on March 5, 2016, alleging that the Carrier violated Rule 50 when it did not bulletin the position at the start of the nextbidcycleonJanuary15,2016.Thepartieshavingbeenunabletoresolvethedispute through the normal claims procedure, the matter was appealed to the Board for final and binding adjudication.

According to the Organization, until the position was abolished, it was a vacant position that had to bebulletinedwithin ten days per Rule 50 even ifitwasthe Carrier's desire to abolish it. The Claimant held the highest seniority in the Lead Signalman classification, whichwouldgive himpreference and theright to be awardedthe vacancy. The language of Rule 50 is clear and unambiguous, and requires that vacant positions must be bulletined and filled. The Claimant would have earned the difference between the Lead Signalman position and the Foreman position until the position was actually abolished. The Carrier has the right to determine its workforce, but if it was the Carrier's desire to abolish the Foreman position, it was required to bulletin the abolishment within ten days ofthe vacancy occurring (January 18, 2016, after Warnock retired on January 8, 2016). Rule 50 requires the Carrier either to bulletin the position or to post an abolishment notice. It did neither. The Carrier violated Rule 50 and the claim should be sustained.

The Carrier argues that nothing in the Agreement prohibits it from eliminating positions after determining the foreman position was no longer needed. Further, no language exists in the Agreement requiring the Carrier to abolish the position when the incumbent retires. Accordingly, the Carrier is free to act. The Claimant seeks to profit from a harmless clerical error. This is not an instance where an active, vacant position was not bulletined. The position was eliminated as all independent foreman positions were eliminated as work projects wrapped up. The position no longer existed; it was nevergoingtobebulletinedbecausetherewasnovacancy requiringadvertisement.The Carrier did not violate Rule 50 when it failed to bulletin the position.

The record includes an e-mail dated April 25, 2016, from Thomas Matheson, Supervisor of Construction in the Eastern Region, about the facts surrounding this incident:

"The abolishment was effective on 3/25/16. Carl retired the first week of January. As to why it was not abolished sooner was just an oversite [sic] on my part. Had a life changing event at the end of the year due to my wife's passing. The position was no longer needed due to all major phases of the New River being complete. Over the past year all independent Foremen on the C&O were abolished as projects finished up."

The Organization is correct that Rule 50 requires vacant positions to be bulletined within ten days of becoming open. The Uniform Advertisement/Award Cycle attempts to cover all the bases by requiring that positions be advertised, awarded or an abolishment notice posted. However, the circumstances here establish that the position was not formally abolished as a result of significant adverse personal circumstances in the life of the individual charged with processing the abolishment. This is not a case wheretheCarrierdeliberatelyfailedtobulletinanopenposition.TheCarrierhadmade the decision to abolish the position when the incumbent retired before he did so. This wasconsistentwithhow ithadhandledotherindependentforemanpositionsontheNew River project, which had already been abolished because the project was coming to an end. The failure to post an abolishment notice was entirely inadvertent and unintentional. Under the circumstances, theBoard finds that the Carrier did not violate Rule 50 when it failed to bulletin Mr. Warnock's independent foreman position following his retirement.

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 16th day of July 2019.