Anong these were a black male and a white female, who held the least seniority among the ten candidates.

Along with training undertaken for other seniority districts, the Carrier selected six Hinton employees to commence training

august 8, 1988. These included the four most senior employees ;concerning which there is no dispute here), the black employee, and the female employee. The four others, all white males, were selected for training classes commencing an later dates -- three on September 12, 1998 and one are May 22, 1989.

Upon successful completion, ail ten were given Engineer seniority standing from the date of the commencement of training. This resulted in four employsss being placed in Engineer seniority below the two black or female employees who held less Trainman seniority. It is this result which gives rise to the Orqanixatients challenge to the Carrier's action. Mars specifically, tile organization contends that the Carrier is fn rule violation for selecting the black and female employees instead of four pore senior employees for the initial August 8, 1988 training program. Applicable here is Article XIjr, Section 3 of the October 31, 1985 TJTV National Agreement, which reads in pertinsat part as fa llcwts:

Section 3 - Retention of Seniority

(1,) Subject to the carrier's legal obligations, when eeiecting new applicants !or enqira service, apgortunity shall first be givens to employees in train and yard service on the basis of their relative seniority standing, fitness and other qualifications being equal . . . .

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The Carrier defends its selection of the black arid female employees out of seniority order on the basis for the qualifying phrase, "(s]ubject to the carriers legal obligation'. The Carrier interprets wlagal obligation" to refer to Federal law and regulation as to affirmative action employment and promotion obligations.

This obvious conflict between first opportunity by reniority and illegal obligations" war. Initially reviewed in Public Taw Board No. 501,1 (Procedural). Award No. 1 (Marx), in which the Carrier challenged the OrganizatiDn's right to dispute the Carrier's obligation, as it perceived it, to meet Federal law requirements. That Award, which is incorporated herein by reference, found that the organization could properly challenge the partioular action taken by the Carrier as to its consonance with the Agreement. In brief sugary, the Award noted as follows:

. The Carrier makes a convincing case as to the accepted understanding that such "legal obligations" rafee specifically to affirmative action.

Thor* can 1be no doubt that the Organization's claim is bottomed on a specific provision of the applicable agreement which offers seniority protection. It is equally clear that the Carrier has certain *legal

obligations" which say modify application of the

provision.

Almost simultaneously with the issuance of FLS 5041 Award No. i, an Arbitration Award was issued by Arbitrator Don S. Mays concerning the same Adreevetat provision and involving the Same organization and a different carrier. Arbitrator Hays dealt with both the seniorityjlegal obligation issue as well as the 'fitness

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