NATIONAL RAILROAD ADJUSTMENT BOARD
Third Division
Paul Samuell, Referee
DISPUTE.-" Shall Mr. \l, E, Martin, seniority date November 11, 1921, be permitted to displace )Ir. C. J. Smith, seniority date July Ist, 1926, from position designated as Desk No. 10 in office of Assistaut Frelght Traffic Manager, Little Rock, Ark., and shall Mr. -Martin be compensated for monetary loss sustained account not Icing permitted to displace Mr. Smith, effective February 1st, 1935?"
FINDINGS.-The Third Dirision of file Adjustment Board, upon the whole record kind all the evidence, finds that:
The carrier and the employees iuvohcd in this dispute are respectively Carrier aial employees within the meaning of the Railway Labor Act its approved June 21, 1!X34.
This Division of the Adjustment hoard li;t~ jurisdiction over the dispute involved herein.
The parties to said dispute were given due notice of hearing thereon.As a result of a deadlock, Paul Samuell was called in as Referee to sit with this Division.
The parties have jointly- certified the following facts, anti the Third Division so finds:
"Effectite February 1, 1935, position of Rata Clerk held fly Air. -,%[. E. Martin, seniority slate November 11, 1924, office of Assistant Freight Traffic Jlanager, Little Rock, was cut oft account of reduction in force. Mr. Martin, ht the usual wily, served notice that lie desired to displace Air. (',. J. Smith, seniority date July 1, 10'26, from Position of hate Clerk, Desk No. 10, rate $$177.30. Mr. Martin was informed that etfu:tive oil that date the office of Assistant Freight Traffic Manager hall adopted 'new rules' requiring all applicants for any position in the office to undergo a written examination. Mr. Martin, alter reviewing the plan of rules of qualification and questionnaire, declined to submit to this examination and was therefore denied an opportunity to place himself oil position known as Desk No. 10 until such examination and questionnaire had been completed."
Ali agreement bearing effective (late of January 1, 1931, exists between the parties, and employee's claim is based oil that part of little No. 25 thereof, reading:
"REDUCING FORCE.-when reducing forces, seniority rights shall govern. As much advance notice as possible will be given employes affected in reduction of forces, or lit abolishing positions. Employes whose positions are abolished may exercise their seniority rights over junior employes. Other employes affected may exercise their seniority fit the same maimer. Employes displaced whose seniority entitles them to regular position shall assert their rights within tell (10) days. (See Rule 5, Iteill 30.)"
Prior to June 21, 1933, question as to application of Rules 7, 23, and 25 to an employee requesting the right to displace oil higher rated or more important positions, was in dispute between the parties and oil that date disposed of as follows:
"It is considered that Rule 17 will :ipply when employees are denied the privilege of bumping on higher rated or more important positions, file same as when their applications for bullethod vacancies are not accepted."
This interpretation modified the application of Rule 25 to extent of applying Rule 17 to a dispute of this kind and not making it mandatory for the carrier to assign an employee, if not qualified.
The record in this dispute discloses that claimant Martin, through tile exercise of seniority rights, is attempting to displace an employee oil a higher rated tariff position from which position he himself had been disqualified in the previous year. As a matter of fact, in the month of December 1933 claimant Martin sought the position which lie now again requests, and :i serious question arose between the management and claimant Martin as well as the employees' representatives, as to his qualifications. As the result of negotiations, Mr. Martin was first given a thirty-day trial, and biter this time was extended to ninety- days, at which time he was relieved from duty, amt lie was fully informed as to fire reasons for his disqualifications.
The position in question is a highly specialized tariff position. It is not ordinary clerical work, and it is quite colurivahle that Many huliridaAs who may have occupied clerical positions for many years might not be able to handle the position fn question. After Mr. Martin's trial and disqualification, the management, as it claims, began the preparation of an examination which consisted of questions to be answered by applicants for the position, thus enabling the management to determine the qualifications of the respeetive applicants. On February 1, 1935, the management adopted the rule which required all aliplicants to submit themselves to the examination. Claimant Martin refused to take the examination. Air. Martin and his representatives claim that the questions were unfair and tricky and that they were prepared for the purpose of disqualifying him. This Divi,,ion has not sufifeieiit knowledge of the tariff question to determine the fact as to the fqirness of the questionv.
Iii our opinion the record in this (-rise leads its to the conviction thiIt the management had a justifiable reason in questioning the ability of the claimant. It is our further opinion that claimant Martin should have submitted Himself to the examination, and in case he was unsuccessful he could have, with propriety, demanded that the results of his examination be compared with those of other applicants; and if subterfuge bad been practiced by the management and injustice done, this Division could have then determined the question oil appeal.
Employee's representatives further contend that there is nothing in the Agreement between the carrier and employees which will permit the management to invoke a rule requiring applicants for positions to pass examination. The fact is that there is nothing in the Agreement which prescribes what method shall be adopted in determining the ability and efficiency of applicants. This Division is of the opinion that any reasonable rule of liracttee would be justified in determining qualifications, and that claimant should have submitted himself to interrogatories for the purpose of determining whether lie or any other person was qualified. This Division is not tit this time either approving or disapproving the policy of the carrier management in requiring written exainhiations. Iii view of the fact that the claimant bad previously been disqualified and iris subsequent refusal to submit himself to further examination, leads this Division to the opinion that the management was within its rights of discretion in refusing to permit the claimant to exercise ]its seniority rights by displacing an employee on a higher rate tariff position.