Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13264
Docket No. 13098
98-2-95-2-124
The Second Division consisted of the regular members and in addition Referee
Eckehard Muessig when award was rendered.
(International Association of Machinists and
( Aerospace Workers (District 19)
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"DISPUTE - CLAIM OF EMPLOYEES
1. The Consolidated Rail Corporation violated the Rules of the
Controlling Agreement of May 1, 1979, and particularly Rule(s) 2
:1-1 and 2-A-3, when Machinist N. Forest was denied an advertised
position as a M of W Machinist in Conrail Seniority District `013C.'
'-. lccordinply, the claimant is entitled to the payment as requested,
56,038.011."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all the
evidence. finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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.
Form 1 Award No. 13264
Page 2 Docket No. 13098
98-2-95-2-124
The issue in this case is whether on October 15, 1991, the Carrier improperly
denied the Claimant an opportunity to displace a Junior Machinist from a Repairman
position on a CAT Tamper at the Carrier's Cleveland, Ohio facility.
Rule No. 2 Selection of Positions is controlling in this matter. It reads, in
pertinent part. as follows:
"RULE NO. 2--SELECTION OF POSITIONS
2-A-1. (a) In the exercise of seniority, the senior
employee shall, if sufficient ability is shown by trial. be given
preference to positions desirable to them.
2-A-3. (a) I. Employees awarded advertised positions
for which they bid or applied or acquiring positions through
displacement of junior employees, will be given full
cooperation from supervisory forces and others in their
efforts to qualify.
_'.
.fin employee failing, to qualifv for the
position selected after having been given a fair opportunity
to demonstrate his qualifications. will retain all prior
seniority and will, within five (5) working days, return to his
former position unless it has been abolished or permanently
filled by a senior employee, in which event he may exercise
senioritv in accordance with Rule 3-(.'-3.
3. Other employees displaced in the
application of this rule may exercise seniority in accordance
with Rule 3-C-3.
(b) 1. When the installation of a basically
improved t-he of new machinery or new work methods
requiring new or additional skills necessitates the creation of
a new position under the Agreement, the position shall be
Form I Award No. 13264
Page 3 Docket No. 13098
98-2-95-2-124
advertised and filled in accordance with the provisions of
Rule 2-A-1. When there is a large scale installation of new
machinery or large installation of new work methods
requiring new or additional skills which may involve a
substantial loss of work as mechanics to senior employees,
representatives of the Company and of the employees shall
agree upon a training program.
2. If the senior bidder or applicant for such
position is not qualified therefor, he shall be assigned as a
trainee. and shall be paid the hourly rate of his former
position during the training period. If his former position was
that of a helper, he shall be paid at the minimum rate of
mechanic.
3. Except as may otherwise be agreed upon,
such as in the case of large scale installations, the terms 'new
machinery' and 'new work methods' shall be considered as
applicable only during the first year of operation at the point
involved.
The evidence shows that the CAT Tamper has been in operation for six years.
Therefore. it is not a piece of new equipment and does not involve "new work methods"
pursuant to Rule 3-A-3(b). Thus, the only questions are whether the Claimant was
qualified to operate the equipment and whether he was "given a fair opportunity to
demonstrate his qualifications" as stated in Rule 2.
On October 15, 1991, a Carrier Supervisor tested the Claimant on some of the
rudimentary procedures involving repair of the CAT Tamper. The Supervisor
memorialized in a document what tasks he assigned to the Claimant to evaluate his
qualifications. On the property, the Claimant did not refute the Supervisor's key
conclusions. Also. he provided no evidence that he was not given a fair opportunity to
demonstrate his qualifications.
Form 1 Award No. 13264
Page 4 Docket No. 13098
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It is well-established. absent contractual constrains, that the Carrier has the sole
discretion to determine whether an employee qualifies to perform the work of a
particular position, provided that this right is not exercised in an arbitrary,
discriminatory or capricious fashion.
We find that the trial given the Claimant on October 15, 1991 met the Rule 2
requirements. Therefore, the claim must be denied.
AWARD
Claim denied.
ORDER
This Board. after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
Bv Order of Second Division
Dated at Chicago, Illinois, this 18th day of May 1998.