PUBLIC LAW BOARD N0. 2960
AWARD N0. 97CASE N0. 131
PARTIES TO DISPUTE:
Brotherhood of Maintenance of Way Employes
and
Chicago & North Western Transportation Company
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to
assign Foreman M. J. O'Leary to the Rail Buc Gang foreman's position on Bulletin 83-287 and instead assigned
a trackman (C. E. Hook) with no foreman's seniority.
(Organization File 4T-3925; Carrier File 81-83-165).
(2) Claimant M. J. O'Leary should now be assigned the foreman's position and compensated for the differential in
wages and hours of service rendered by Mr. C. E. Hook.
OPINION OF THE BOARD
This Board, upon the whole record and all of the evidence,
finds and holds that the Employe and Carrier involved in this
dispute are respectively Employe and Carrier within the meaning of
the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.
The facts are essentially undisputed. On June 21, 1983, the
Carrier posted a bulletin advertising a vacancy for, Foreman on a
Rail BUC Gang. This position was a Class A Foreman position on a
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Award 97
Case 131
large gang consisting.of 18 or more employes. The Claimant, who
has a Foreman seniority date of September 30, 1980, submitted a bid
for this position. Another employe, C. E. Hook, who had no seniority date as a Class A Foreman, was subsequently assigned to this
position. The claim protests the assignment of the junior employe,
contending the seniority rights of the Claimant were violated.
The Board's opinion that the controlling language in this
case is Article II, Section 3 of the "Coal Line Agreement". Section 3 is specifically related to the question of seniority as a
factor in Class A Foreman assignments. It states:
"All positions of foreman on gangs consisting of T8 or more
employees will be bulletined to employees on the appropriate,
seniority district pursuant to the procedures of Rule 16, but
such positions will be filled on the basis of qualification
and seniority, qualification to be of first consideration."
In view of the language, it is clear that seniority is not controlling. Therefore, the fact the Claimant has Class A seniority and
Mr. Hook did not, is not controlling.
What is relevant under Section 3, is the relative qualification of the Claimant and Mr. Hook. More specifically, the critical
question is whether the Carrier erred in assessing their respective qualifications.
The evidence fails to show that Mr. Hook's qualifications
were less than or equal to the Claimant's qualifications. The
Claimant, while a Class A Foreman, had not had experience with such
a large group. He had worked.on a tie gang consisting of 28
employes, while this gang had 70 employes. Moreover, Mr. Hook,
even though he did not have Class A seniority at the time of the
_2_
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assignment previously had, prior to the time forfeited it, Class
A seniority. Moreover, he had more than sufficient experience as
a foreman. Mr. Hook had previously been- assigned as the foreman
on the 1982 BUC-Rail Gang, which had more than 70 employes.
According to the Carrier, Mr. Hook performed his job as Foreman
on this gang satisfactorily. aHe was also Assistant Foreman on
this gang in 1981. This weighs heavily in concluding that the'
Carrier's determinations were not a violation of the agreement.
AWARD
The claim is denied.
arper, oyemer
Vernon, chairman
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