NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
The Second Division consisted of the regular members and in
addition Referee John P. Devaney when award was rendered.
SYSTEM FEDERATION NO. 103, RAILWAY EMPLOYES'
DEPARTMENT, A. F. OF L. (MACHINISTS)
DISPUTE: CLAIM OF EMPLOYES: That R. G. Pemberton, machinist at Elkhart, Indiana, New York Central Railroad, be paid for all time lost through violation of Rule 18, and be placed on job of machinist to maintain motor car.
JOINT STATEMENT OF FACTS: On May 8, 1936, there was a bulletin posted on the bulletin board in the Elkhart enginehouse advertising a vacancy for one machinist to maintain motor cars. The above mentioned bulletin was posted and signed by Mr. J. J. Wenzel, general foreman The required time in accordance with the shop crafts' rules expired Tuesday, May 12, 1936. There were two machinists who made application in writing for the above mentioned job. Mr. R. G. Pemberton, seniority date 5-1-19, and Mr. A. H. Russ, seniority date 8-11-22. Mr. A. H. Russ, who was temporarily assigned, was allowed to remain on the job as a regular assigned employe.
POSITION OF EMPLOYES: That Rule 18 of the current agreement between the New York Central Railroad Company and System Federation No. 103, was violated when the officials in charge assigned Mr. A. H. Russ, who was the junior employe making application for the vacancy that had been posted. Rule No. 18 reads in part as follows:
The supervision has raised the question of qualification in this case. Mr. Pemberton has been working at the machinist trade for the last 31 years, after serving five years as an apprentice for the Canadian National Railroad, and always has been a loyal and faithful employe since being employed by the New York Central Railroad Company, and his ability as a mechanic has never been questioned by any of the supervision whom he has worked for. Therefore, we contend that the company has used discrimination, pure and simple, by not complying with the rule and allowing him (Mr. Pemberton) a reasonable time to prove his qualification for the job as motor maintainer.
The employes are placing an interpretation on this rule in this case which would have required the management to assign the senior bidder to this vacancy without regard for his qualifications and for the management's responsibility for safe and reliable operation. The motor car maintainer has the responsibility for the inspection and maintenance of this gas-electric rail motor car at Elkhart, and the management has the responsibility of assigning to this work a man upon whom it can rely to satisfactorily perform the work required. Adequate detailed knowledge of the type of equipment involved and the ability to apply such knowledge are necessary in order to perform the work of maintaining gas-electric rail motor cars. Prior to May, 1936, Pemberton never had availed himself of opportunities to familiarize himself with this work. On the other hand, Russ did take advantage of opportunities on his own time to prepare himself to handle this work, and after such preparation did, on various occasions, in the absence of the regular man assigned thereto, demonstrate that he was well qualified. Therefore, in assigning Russ to the position after Pemberton had failed to qualify, as above shown, the management in no way violated Rule 18 and the discrimination alleged in the Position of Employes is unfounded.
We recognize that the principles of seniority should govern in filling new positions or vacancies, provided employes who have sufficient seniority also have sufficient ability to perform the work of the position claimed. It would be an unwarranted application of Rule 18 to assign senior applicants to the inspection and maintenance of gas-electric rail motor cars without due regard for their ability to handle the work in a satisfactory manner.
OPINION OF THE DIVISION: The only issue in this case is whether or not employe Pemberton was given a fair trial to qualify for the position of motor car maintainer.
It appears that the position of motor car maintainer required certain knowledge of gas-electric rail motor cars. It also appears that Pemberton had had many years experience as mechanic but that his experience related to steam locomotives, and work on gas-electric motor cars was unfamiliar to him.
Pemberton was assigned temporarily to the position of motor car maintainer, was given certain duties to perform and asked certain questions. After he had been on the position between four and five hours it was determined by the management that he was not sufficiently qualified to perform the duties of that position.
While the charges of unfairness and discrimination made by the employes are many, they are not substantiated by the record and in the absence of such evidence in the record tending to establish unfairness and discrimination, we cannot disturb the decision of the management.
We have not overlooked the testimony of the general chairman to the effect that one Ball, the local foreman, had at one time made a statement indicating that Pemberton was not desired in the position of motor car maintainer. However, at best this merely indicates an attitude on the part of one of the representatives of the management and does not establish that Pemberton's trial for the position of motor car maintainer was unfair.