Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10724
SECOND DIVISION Docket No. 10509
2-C&O-CM-'86
The Second Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. Claim: That the service rights of Bonafide Carmen, Herman Perry, E.
F. Lockard and Frankel Beach and existing rules of agreement, Rules
27, 29 and "Guidelines To Be Followed With Respect To Bonafide
Carmen Who Are Furloughed At One Point And Desire to Displace
Tentative Carmen At Other Seniority Points On The Chesapeake
District Of The Chesapeake and Ohio Railway Company", dated December
11, 1970 were violated account not being permitted to displace
tentative carmen working at Huntington Shops and Yards.
2. Accordingly, Perry, Lockard and Beach are each entitled to be placed
on the bonafide Carmen's seniority roster at Huntington Shops and
Yards with a date of June 2, 1982 and also each are entitled to be
compensated eight (8) hours each day, five (5) days each week at
Carmen's applicable straight time rate until such time that~they are
restored to service at Huntington, West Virginia.
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 employes 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 waived right of appearance at hearing thereon.
The three employes who are Claimants in this dispute were employed as
"bona fide" carmen at the Carrier's Raceland, Kentucky location when, in May,
1982, they were furloughed. The three were among a large group of carmen from
Raceland who attempted to displace junior "tentative" carmen at the Carrier's
Huntington, West Virginia location in June, 1982, according to the provisions
of the guidelines referred to above. The Claimants were interviewed by
Carrier officers, during which the Claimants allegedly disclosed that they
could not make terminal air tests and that they had no transportation yard
experience. The Organization does not dispute that the individual Claimants
made these disclosures to the Carrier. The Carrier's representatives
Form 1 Award No. 10724
Page 2 Docket No. 10509
2-C&O-CM-'86
determined from these admissions that the Claimants were not qualified for the
carmen positions at Huntington, and therefore refused to allow them to
displace the tentative carmen employed there.
The Organization argues that the Claimants' admissions should not have
disqualified them for these positions, and that therefore the Carrier has
violated the Collective Bargaining Agreement by refusing to allow them to
displace tentative carmen at Huntington. Although the claims state that Rules
27 and 29 of the agreement were also violated, in its submission the
Organization relies solely upon language contained in a 1970 Memorandum
Agreement which contains guidelines governing cases in which bona fide carmen
who are furloughed at one point may displace tentative carmen at another
location. The relevant language in these guidelines provides:
"1. Bona fide carmen furloughed at Point "A"
...
would be
permitted to displace tentative-carman at other seniority
points
...
provided it was considered by the local supervision at the point at which they desired to displace that
the bona fide carmen were qualified to perform Carrier's
service requirements as they existed at the point at which
they desired to displace a tentative-carman. Where there
was question as to the qualifications of an individual
employe the individual would be given not to exceed a three
day trial period to determine whether the employe was or was
not qualified . ... If the employe was not qualified
displacement would not be permitted." (Emphasis added)
In the instant case the Carrier did not allow the Claimants a trial period, _
but simply determined from the initial interview that they were not qualified
for the job.
The precise nature of these guidelines is not clear from the parties'
submissions, and the Carrier suggests that they do not carry much weight,
because they are merely "guidelines". The Carrier does not expressly argue
that the guidelines are not binding, however, or that they are not part of the
Collective Bargaining Agreement. Therefore the Board will consider them as
rules which the parties must observe.
The guidelines provide a trial period to determine an employe's qualifications when there is a question as to those qualifications. The Carrier
contends that the trial period applies only when there is doubt about the
qualifications of the employe, and that there was no doubt in this case. The
Organization suggests, however, that at least one of the qualifications under
review, i.e. experience in the transportation yard, was not essential to many
of the carmen positions, since only a few carmen positions were in the
transportation yard.
The issue thus evolves around the question of who determines whether a
trial period is available. The assumption underlying the Carrier's position
is that only the Carrier may decide whether there is doubt concerning an
employe's qualifications. If the Carrier were given sole authority to decide
this issue, however, then there would be no need for this language in the
agreement. The Carrier could simply offer a trial period if, in its own best
interests, it decided one was beneficial. The fact that the language is
Form 1 Award No. 10724
Page 3 Docket No. 10509
2-C&O-CM-'86
included in the Agreement at all demonstrates that the parties intended it to
provide some protection to the employe whose qualifications are in doubt. If
the Board were to accept the Carrier's interpretation, then the Carrier could
circumvent this protection simply by stating that there is no doubt about the
employe's qualifications. The Board does not believe the parties intended
this result.
The Carrier has asserted that the Claimants were not qualified for the
positions they sought, and has cited many opinions by this Board upholding the
general principle that the Board must defer to the Carrier's decisions
regarding employe qualifications. Under these general principles the Carrier
need not prove that the employe in question was unqualified for the job when
the Organization raises the question through a claim or other grievance
procedure; it is up to the Organization to prove that the employe was
qualified. However, none of the cases cited by the Carrier involves the sort
of limiting language present in this Agreement. Here the Organization need
only prove that the employe's qualifications are in doubt. Because the
Carrier never responded to the organization's assertion that the skills or
experience lacked by the Claimants were not essential to the job, the Board
concludes that there was sufficient doubt about the Claimant's qualifications
to necessitate a trial period.
The Carrier should have afforded the Claimants in this case a trial
period; however, because this Board has no injunctive powers we cannot order
the Carrier to offer a trial period to the Claimants at this time. The
Organization demands that the Claimants be placed on the seniority roster for
bona fide carmen at Huntington, beginning June 2, 1982 and that they be
compensated at the straight-time rate until they are restored to service at
Huntington. This remedy presumes, however, that the Claimants would have
qualified for the jobs. The Board has found only that there was doubt as to
their qualifications, and they should have been offered a trial period.
Therefore, the Board will order the Carrier to pay the Claimants for the
maximum length of the initial trial period, i.e. three days.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: ~., I!!:
"~
Nancy ,ever - Executive Secretary
Dated at Chicago, Illinois, this 29th day of January 1986.
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