NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION




PARTIES TO DISPUTE:

THE ORDER OF RAILROAD TELEGRAPHERS

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY


ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS

STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on St. Louis Southwestern Railway Lines:



EMPLOYES, STATEMENT OF FACTS: There is an agreement as to rules of working conditions and rates of pay, bearing date of December 1, 1934, in effect between the parties. Several rules have been modified and rates of pay have been increased subsequent to the date of the agreement.

A vacancy occurred in the agent-telegrapher position at New Madrid Missouri, and Superintendent J. L. Humphreys, by bulletin, Advertisement No. 13, dated at Pine Bluff, Arkansas, May 14, 1951, advertised the vacancy for bids:





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Carrier's detriment, as is plainly evident from the complaints cited. If the local officers had shown any disposition to be unreasonable or arbitrary in the matter of Mr. Hulehan's qualifications, there can be no doubt that he would have been disqualified on some of the positions he has been permitted to work. The many sources of the complaints against him rule out any possibility of bias or prejudice.


The facts are clear that he did not have the necessary ability and qualifications for the position claimed. Consequently the claim is not supported by the rules, and the Carrier respectfully requests that it be denied.


    All data herein has been presented to representatives of the Employes.


    (Exhibits not reproduced.)


OPINION OF BOARD: The claim herein presented states that the Carrier violated Article 13-1 of the effective Agreement when it did not. assign O. E. Hulehan, the senior applicant, to a vacancy in the position of agent-telegrapher at New Madrid, Missouri, resulting in loss of earnings to which the claimant was entitled by virtue of seniority and ability. Reimbursement in an amount equal to the loss of earnings is claimed.


The essential facts of this claim are agreed to by the parties. The only question is whether or not the claimant was competent to fill the vacancy.


    Article 13-1 reads as follows, in part:


    "Except as per Article 13-2 permanent vacancies and permanent additional positions shall be bulletined to all employes on the division; bulletin to show location, position, hours of service and rate of pay and the senior employes covered by this agreement making written application within ten (10) days from date of bulletin, if competent, shall be assigned. * ` "' (Emphasis ours)


    Article 18-1 reads as follows:


    "Employes will be in line of promotion and where ability and qualifications are sufficient in the opinion of the Management, seniority will prevail."


The Employes claim that Hulehan has performed the duties of agenttelegrapher at several points over a period of years; that he had performed the duties of agent-telegrapher at New Madrid one day each week for a period of time; that if he were not competent the Carrier would not have permitted the claimant to act as agent-telegrapher at this station. The Employes state that, by a long line of awards, this Board has established the principle that where the senior applicant has sufficient ability he must be assigned even if the junior applicant clearly has more ability; and that this principle is applicable to this case.


The Carrier states that many complaints have been received concerning the work of this claimant by fellow employes and patrons and that he was not competent for the full time position of agent-telegrapher at New Madrid.


After a careful reading of the docket and the rules applicable, we find that under Article 13-1 the Carrier has the right to decide whether the applicant is competent to fill the bulletined position and, unless the Employes can prove that the applicant was competent to perform the position involved or that the Carrier acted in a biased or prejudicial manner in evaluating the claimant's competency, the decision of the Carrier must be final. The Employes have failed in their proof of competency or prejudice, therefore the claim must be denied-Awards 4040, 5966, 6054.

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FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

    That there has been no violation of the Agreement.


                  AWARD


    Claim denied


              NATIONAL RAILROAD ADJUSTMENT BOARD

              By Order of Third Division


ATTEST: (Sgd.) A. Ivan Tummon
Secretary

Dated at Chicago, Illinois, this 14th day of April, 1953.