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from military service, had the right to displace Blatnik from the position of electrician helper.

This claim was taken up by the Brotherhood with the various officers of the carrier concerned. On April 8, 1960, conference was held on the property between representatives of the brotherhood and representatives of the carrier with a view to resolving this claim. At this conference the general chairman submitted letter dated April 6, 1960, to which the carrier made reply under date May 18, 1960.

CONCLUSION

It is the position of the carrier that in the instant case, Mellak properly displaced Blatnik as electrician helper and that in so doing, there was no violation of any agreement. There is no basis for a sustaining award and claim should be denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.

A study of the parties' contentions fathers the conviction that, given the controlling provisions of the two relevant agreements, this case can and must be determined by an application of the U. S. Supreme Court's decision in the so-called McKinney case to the critical facts of record.

Said facts may be summarized as follows: (1) Carrier decided that claimant Blatnik was to be displaced from the position of electrician helper by one Mellak as of February 9, 1959, because (2) some time after the latter had returned from armed-forces service in 1958, carrier decided that he (Mellak) would have been promoted from laborer to electrician helper on May 22, 1956, if he had not been in armed service, because (a) his seniority as laborer had been greater than Blatnik's when on May 22, 1956, Blatnik had achieved electrician helper seniority by being successful bidder for the newly created temporary position of helper, and (b) an earlier government interpretation of the provisions of the Universal Military Training and Service Act relevant to the re-employment and seniority rights of returning veterans seemed to support carrier's proposed action.

Petitioner here relies mainly on the above-mentioned decision of the Supreme Court in the McKinney case. That action took place because a railroad employer had denied to a returning veteran a job to which he said his seniority would have entitled him if he had not been absent in military service. The agreement between the defendant carrier and the plaintiff employe's organization made such promotion discretionary with the carrier; that is, such promotion for the veteran would not have been mandatory or purely automatic on the basis of his seniority alone. Given this kind of agreement on promotion, the Court, apart from certain legal technicalities, said in substance that the veteran could not force the railroad to give him the job he wanted.

In the light of this controlling decision, the issue here comes down to whether the facts of the instant case are the same as those in the McKinney case. In the first place, there can be no question that, under the instant agreement covering laborers, carrier has discretion in the promotion process; under the relevant provisions of Rule 10 of said agreement management has the last word on whether a senior laborer has sufficient ability to attain and hold a job to which his seniority entitles him. Carrier here has contended, without contradiction from petitioner, that under actual practice promotion has in fact been automatic and based wholly on seniority. But in the eyes of this Division such practice must yield to the clear language of the agreement. Therefore, in this respect the instant case may be said to be on all fours with the McKinney one.

But here the similarity stops. There is one compelling difference. In the McKinney case the railroad resisted the returning veteran's request; and the Court upheld this resistance. In the instant case, carrier did not oppose any such desire of Mellak. All that carrier did here was to exercise retroactively its lawful discretion to promote Mellak on the basis of his seniority and sufficient ability. (Petitioner, in fact, does not challenge carrier's judgment on his competence.) Carrier, in effect, has said, if Mellak had been with us and wished us to do so, we should have moved him up ahead of Blatnik to electrician helper; and now that he has come back, we propose to treat him as we would have then.

The Division finds that carrier's complained-of action was not inconsistent with the McKinney decision. On the contrary, it is in harmony with same and with other court decisions interpreting the provisions and spirit of the U.M.T. and S. Act.

The Division finds further that carrier's action did not violate any provision of the several labor agreements here involved. Accordingly, a denial award must issue.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION

ATTEST: Harry J. Sassaman

Executive Secretary

Dated at Chicago, Illinois, this 15th day of November 1962.

DISSENT OF LABOR MEMBERS TO AWARD NO. 4079

The findings of the majority completely misconstrue the issues involved in this dispute, and ignore the undisputed provisions of the controlling agreement upon which the claim is based.

The only justification urged by the carrier for its replacement of claimant, with established seniority as a regular electrician helper, by a returned veteran holding seniority only as a laborer, was the contention that the Universal Military Training and Service Act required the carrier, as a matter of law overriding any agreement provisions to the contrary, to accord the veteran a promotion to electrician helper with fictitious or back-dated seniority in that category sufficient to enable him to displace claimant.

This contention of the carrier is properly rejected in the findings of the majority. Under the controlling decision of the Supreme Court of the United States in McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265, the veteran is not entitled to retroactive promotion and back-dated seniority in the promoted position unless it appears that he would have achieved such promotion automatically, solely on the basis of his seniority in the lower position, had he not been absent in the armed forces. The majority correctly finds that "there can be no question that, under the instant agreement covering laborers, carrier has discretion in the promotion process."

It is at this point, however, that the majority hopelessly loses sight of the issues involved here. Having found that the statute did not require the carrier to take the action complained of, it then proceeds to find that neither is such action prohibited by the statute; that “All that carrier did here was to exercise retroactively its lawful discretion to promote Mellak on the basis of his seniority and sufficient ability"; and, most incredibly, “that carrier's action did not violate any provision of the several labor agreements here involved.”

The last quoted holding is of course completely in error. Absent any statutory mandate which would override agreement provisions, it is clear that the carrier's action here was in direct conflict with provisions of the controlling agreement with respect to seniority. Claimant had almost three years' accumulated seniority in the electrician helper classification and the veteran had none, when the latter was allowed to displace claimant - a clear violation of the seniority provisions of the applicable agreement, as well as those embodied for years in agreements throughout the railroad industry. The idea of a carrier having carte blanche to grant retroactive promotions and seniority status, at the expense of employes who had previously established seniority, is the antithesis of the whole seniority principle, and as patent an agreement violation as could be conceived. Having held that such retroactive treatment of the veteran was not required by the statute in question, it is completely erroneous for the majority to hold that no agreement provision was violated, and to deny the claim.

E. J. McDermott

C. E. Bagwell

T. E. Losey

R. E. Stenzinger

James B. Zink

Docket No. 3901

2-SP(PL)-MA-'62 NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in
addition Referee Carroll R. Daugherty when award was rendered.

PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES' DEPARTMENT, A. F. of L. — C. I. 0. (MACHINISTS)

SOUTHERN PACIFIC COMPANY (PACIFIC LINES)

DISPUTE: CLAIM OF EMPLOYES:

1. That the Carrier violated Rule 37 of the current controlling agreement effective April 16, 1942, as subsequently amended, when Machinist A. E. Cooper (hereinafter referred to as claimant), was denied the Foreman's rate of pay, when used temporarily as Foreman to perform all the duties and responsibilities of a Foreman under provisions of said agreement Rule, on the 3:30 P. M.-11:30 P. M. shift at Carrier's Tracy, California Roundhouse each date December 17, 1959 to January 18, 1960, inclusive, for which service claimant received the Lead Workman's rate of pay instead of the Foreman's rate.

2. That accordingly, the Carrier be ordered to additionally compensate claimant the difference between the Lead Workman's rate received and Foreman's rate for each date of the period referred to hereinabove.

EMPLOYES' STATEMENT OF FACTS: The primary facts which give rise to this dispute are as follows:

Prior to June 25, 1958, supervision of the mechanics employed on the second shift (3:30 P. M.-11:30 P. M.) in the Roundhouse at Tracy, California, was performed solely by the position of roundhouse foreman. This position with its work duties and responsibilities was placed within the scope of an agreement between the carrier and The American Railway Supervisors Association, effective July 10, 1946. The position has, since said date, been within the scope of said agreement.

On June 18, 1958, carrier issued a bulletin abolishing said foreman's position effective June 25, 1958. At the time the position was abolished the roundhouse foreman on that shift exercised supervision over seven men. In addition to such supervision, he handled the dispatching of engines and dealing with dispatchers; assigned all work on the engines performed by the various classes of employes; also assigned the engines for trains dispatched out of Tracy Terminal on his shift; made the final inspections and exercised his judgment as to engines suitable for service; signed I.C.C. Locomotive Inspection Reports CS 2326, including Forms CS 2420, and I.C.C. Form 1-A retained in the engine cab; answered telephone calls and wrote up turnover book for the next shift; all of this work was performed by the Roundhouse Foreman on his shift prior to the abolishment of his position.

On the same day, June 18, 1958, carrier issued "Shopmen's Special Notice No. 1,” establishing at Tracy, California Roundhouse, a new position of lead workman on the second shift effective June 25, 1958. This new position took over all the duties and responsibilities of supervision of forces formerly performed by the abolished position of roundhouse foreman.

Following the abolishment of the foreman's position and the establishing of a lead machinist's position, the American Railway Supervisors Association filed claim with the carrier contending that carrier improperly abolished the foreman's position and turned the foreman's work over to machinists. This claim was denied by the carrier and subsequently appealed to the Fourth Division N.R.A.B. for adjudication. The Fourth Division under date of December 21, 1959, with the aid of Referee Wilbur A. Royse, sustained the supervisor's claim.

Following the issuance of Awards 1435 and 1436 the carrier posted a notice abolishing the lead machinist's position effective with the close of business January 18, 1960 and re-establishing the foreman's position effective January 19, 1960.

Under date of February 12, 1960 claim was filed with the carrier on behalf of Machinist A. E. Cooper, hereinafter referred to as claimant, for the difference between what he was paid as a lead machinist and foreman's rate for each date December 17, 1959 to January 18, 1960, inclusive, for which the claimant was compensated the lead workman's rate instead of foreman's rate, account being required to fill the place of foreman, which was denied by carrier.

This dispute has been handled with all officers of the carrier designated to handle such disputes, including the highest designated officer of the carrier, all of whom have declined to satisfactorily adjust the matter.

The agreement effective April 16, 1942, as subsequenty amended, is controlling.

POSITION OF EMPLOYES: It is submitted that the foregoing indisputable facts reflect beyond question that claimant was required by the carrier to perform the contractual duties of a foreman between the dates of December 17, 1959 to January 18, 1960, both dates inclusive. We also submit that the foregoing facts clearly reflect that claimant's use as a foreman was temporary. Therefore, claimant is contractually entitled to be compensated the difference between what he was paid as lead machinist and the foreman's rate as prescribed in Rule 37 of the controlling agreement reading in pertinent part: "Rule 37. FOREMAN-TEMPORARY RELIEF

"Employes used temporarily to relieve Foreman will receive the Foreman's rate of pay ... while so used."

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