AWARD 132 - APPOINTMENT

Fourth Division Award No. 4849 (Simon)

"Second, we find Letter No. 5 to be controlling in this case. In every respect, the language of Paragraph 2(a) supports the Carrier's position. When the parties agreed to the phrase 'the position of Chief On Board Services, which will be filled by appointment,' they were referring to each position, and not to the entire class of positions. The word "appointment" in this context has a common meaning in this industry. It refers to the Carrier exercising discretion over whom it places upon a job. The word is used to contrast this method of filling jobs from the strict exercise of seniority.

By exempting coverage of these positions from 'those provisions of Rules 2 and 3 relating to promotion, assignment, displacement and disqualification,' the parties agreed Carrier is free to determine, by its own criteria and without regard to seniority, which employees are entitled to be promoted to Chief, who will work specific Chief assignments and under what conditions incumbents will be removed from such assignments. The parties did not include the term "awarding" because that term is generally not used when the Carrier has the discretion as to whom it places upon a position.

Because the appointment to the position in question was exempt from the provisions of Rule 2(b), and there is no evidence Carrier abused its discretion, we find there was no violation of the Rule. Because the Rule is not applicable, we need not address Carrier's alternative argument."

Second Division Award No. 12568 (Eckehard)

"The question before the Board is whether a junior employee, who has already been appointed to the position, may be displaced by an employee with greater seniority. With respect to this question, we hold that Rule 27 is controlling because it deals explicitly with the position of Machinist, while Rule 24 addresses general seniority. The key language, as applied to this claim, is contained in Rule 27 (a). In pertinent part, the Rule states that Machinist "may be appointed" by the Carrier.

While the parties did not cite any relevant precedents, this Board notes that Fourth Division Award 4849 is helpful. The Award held in part that the "word appointment…has a common meaning in this industry. It refers to the Carrier exercising discretion over who it places upon a job. The word is used to contrast this method of filling jobs from the strict exercise of seniority." In light of this line of reasoning, the Board has concluded that the word "appointment" in Rule 27 would be rendered inoperative and of no meaning if the "appointed" employee could be displaced solely on the basis of "seniority."