CARMAN PROMOTED TO YARDMASTER NOT REQUIRED TO FORFEIT SENIORITY IN CARMEN CRAFT (143)

Second Division Award No. 11171 (Mikrut)

"In further support of its position, Carrier also argues that: (1) Organization is estopped from challenging Mr. James' Carman seniority, since Organization failed to make a timely objection thereof for almost two (2) years as it required by Rule 25(c); and (2) the clear language of Rule 25(d) protects Mr. James' seniority since he was promoted to 'other official capacity' as an Operating Department Supervisor rather than a Mechanical Department Supervisor, and he has maintained his continuity of service in that position.

The Board has carefully read, studied, and considered the complete record in this dispute, and is persuaded that Carrier's position, as presented, is correct and, therefore, must prevail. Stated simply, Organization has failed to prove a specific contractual violation in this case. Moreover, even if Organization had been successful in arguing the merits portion of this Claim, Organization still could not have overcome Carrier's procedural objection that the protest itself was not filed in a timely fashion as is required."

Public Law Board No. 4698, Award No. 44 (Muessig)

"Rule 28½ is very specific. It clearly states that 'Carman when promoted to supervisory or official position, do not sacrifice their seniority rights'. The language with respect to the key word 'supervisory' contains no restrictions. Accordingly, the only question is whether a 'yardmaster' indeed is a 'supervisory' position as contemplated by the appropriate rules.

The Organization in its submission recognizes that a Yardmaster's position 'does indeed encompass supervisory duties.' However, it then attempts to define away the nature of the 'Yardmaster' supervisory responsibilities as not 'being the issuer of work assignment' and not as the provider of 'guidance on mechanical tasks.' While this explanation is partially true, it somewhat misses the point.

Carmen, as well as Engineers, Conductors and others most comply with the instructions given by the Yardmaster as appropriate when he performs his official duties with respect to the movement of trains and his other primary responsibilities for the safe and efficient operation of the yard. We hold that these types of duties found in the context of the Yardmaster responsibilities are properly considered to be 'supervisory'.

Last, we note that Second Division Award No. 11171 (Mikrut) construed the same key contractual language as that which is contained in Rule 28½. The Award held that the Agreement was not violated by retaining an employee on the Carmen's seniority roster while he worked as a Yardmaster.