' AWARD IN DOCKET N0. 10
SPECIAL BOARD OF ADXM04MT N0.
287
PARTIES: BROTHERHOOD OF MAINTENANCE OF WAY ETTLOYES
and
THE BALTIMORE AND OHIO RAILROAD COMPANY
STATEMENT
OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement and ignored the seniority rights of
Trackman James 0. Whisner when it assigned the position of tie tamper operator as
advertised in Bulletin No.
45,
dated May
24, 1956,
to an applicant who was junior
to Trackman James 0. Whisner.
(2)
The Carrier likewise violated the very basic and fundamental concepts and
principles of the seniority rules of the Agreement when it selected, instructed and
required Trackman W. A. House, with seniority from April
3, 1947,
instead of Trackman James 0. Whisner, with seniority from March
9, 1926,
to learn and become acquainted with operation of a tie tamper while under pay and serving as a Trackman
at 'which time no employee on the division was qualified to operate this machine.'
(3)
Claimant James 0. Whisner be assigned to the position of tie tamper
operator.
(4)
Claimant James 0. Whisner be paid the difference between what he received
at the trackman's rate and what he should have received at the tie tamper operator's
rate for each day he has been denied the right and opportunity to fill the position
of tie tamper operator.
(5)
Claimant be given seniority as a tie tamper operator as of June
15, 1956,
the date position of tie tamper operator was awarded by Bulletin No.
49,
and that
he shall be considered senior in such class to Mr. Willard A. House."
FINDINGS: Carrier on May
24, 1956,
bulletined a new job on the Cumberland Division
as Tie Tamper Operator on McWilliams Machine
PB-4-bi.
It awarded it to
Willard House, whose trackman seniority date was April
3, 1947,
thus by-passing
applicant James 0. Whisner, seniority date March
9, 1926.
This particular machine was placed in service on an experimental basis in
1955.
Among those given training on the machine was House, who operated it
20
days in
1955
and 10 days in
1956.
Carrier says he was a competent operator. Carrier says further that Claimant "had less than
30
minutes' experience" in operating the machine.
Carrier says Trackman House was
31
years of age. Claimant was
52
years of
age. It states Claimant "was clearly not qualified to assume the responsibility of
operating this machine."
Involved here is Rule
34:
L
. 56Aag~
- 2 - AWARD N0. 10 - B&0
"BASIS OF PRO140TION
A promotion is an advancement from a lower rank to a
higher rank. Promotions shall be based on ability, merit
and seniority. Ability and merit being sufficient seniority
shall prevail."
Being the senior Trackman, Claimant was certainly entitled to an opportunity
to qualify on this job, at least equal to that afforded Trackman House. House had
30
days on the machine, Claimant only
30
minutes.
Seniority is certainly not the sole factor to be considered in promotion. However the Rule does provide that "ability and merit being sufficient, seniority shall
prevail." Most certainly a man's age per se has nothing to do with it.
On the basis of this record we must and will hold that Carrier's action here
was an arbitrary and capricious exercise of its basic right to deteMninP the sufficiency of Claimant's ability and merit.
Carrier's rights in matters of this kind are fully protected by Rule
38.
It
should have given Claimant a qualifying period equal to Trackman House.
AWARD
Parts (1) and (2) of this claim are sustained.
At the same time, we are not unmindful of the collateral doubts Carrier has
respecting Claimant. In lieu, therefore, of parts
(3), (4)
and
(5)
of this claim,
as made, we will award and direct as follows:
(3)
Claimant be assigned to the position of Tie Tamper Operator.
(4)
Rule
38
is fully applicable.
(5)
Should Claimant qualify within the
30
days, then Carrier
shall pay him the difference between what he received at
the trackman's rate and what he should have received at
the tie tamper operator's rate for each day he has been
denied the right and opportunity to fill the position of
tie tamper operator, but in no event beyond February
25,
1960;
and shall give to him seniority as a tie tamper as
of June
15, 1956,
the date position of tie tamper was
awarded by Bulletin No.
49.
He shall then be considered
senior in such class to Mr. Willard A. House.
(6)
In the event Claimant should fail to thus qualify, his
rights are protected by Rule
38,
and Carrier's liability
for the difference in rates as back pay is eliminated.
' s6P, age
- 3 - AWARD N0. 10 - H&0
(s) Edward A. Lynch
Edward A. Lymch
Chairman
(s) A. J. Cunningham -(s) T. S. Woods
A. J. Cunningham T. S. Woods
Mmploye Member Carrier Member
Dated at Baltimore, Maryland
this 31st day of May,
1960.
40