THE CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC
RAILWAY COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On November 7, 1952, the Carrier's Agent, Mr. E. W. Rothring, issued Vacancy Bulletin No. 30, advertising vacancy in the position of Depotmaster on account of the retirement of Mr. R. J. Fischer, Depotmaster. On the same date, Mr. R. C. Flanigan, Local Chairman, in a letter to Agent Rothring, made protest in regard to certain language appearing in the description of "preponderating duties" in Bulletin No. 30, and requesting a corrected bulletin be issued. Agent Rothring replied, under date of November 10, 1952, declining Mr. Flanigan's request. On November 12, 1952, Local Chairman, Mr. Flanigan, again wrote Agent Rothring, renewing the protest and again objecting to the phrase "and have previous experience in warehouse supervision."
On November 15, 1952, Agent Rothring issued Buletin No. 30-A, cancelling Bulletin No. 30 of November 7, 1952, and calling attention to Bulletin No. 31 of November 15, 1952. Bulletin No. 31 differed from Bulletin No. 30 in that the Agent had eliminated the requirement "also uniform freight classification" as well as the phrase, "have previous experience in warehouse supervision" to which Local Chairman, Mr. Flanigan, had objected.
In the instant case the effective agreement provides in clear and unambiguous language that the appointing officer shall be the judge of an employe's merit, capacity and qualifications, subject to appeal to the highest officer designated by the Carrier to whom appeals may be made whose decision shall be final. The employing officer determined that Claimant Kolhoven's merit, capacity and qualifications were not sufficient to enable him to fill the position of depotmaster. This determination was not unreasonable, arbitrary or capricious. As Claimant Kolhoven questioned Carrier's decision in the matter, he had the burden of overcoming it by substantial and competent proof. That he did not do. In these circumstances, and on the basis of prior Board awards, he cannot prevail.
(a) Rule 16 of the effective clerical agreement provides that merit, capacity and qualifications being sufficient, seniority shall govern, the appointing officer to be the judge, subject to appeal to the highest officer desig. nated by the carrier to whom appeals may be made, whose decisions shall be final.
(b) Merit, capacity and qualifications of Rate Clerk Kolhoven, here claimant, were not sufficient to fill the assignment of depotmaster at Gest Street Station in Cincinnati, therefore, his seniority did not govern in the filling of such assignment.
(c) Under Rule 16 of the effective clerical agreement, the appointing officer (the Agent at Cincinnati) was the judge of Rate Clerk Kolhoven's merit, capacity and qualifications. In judging and making his decision he determined that Claimant Kolhoven's merit, capacity and qualifications (training) were not sufficient to enable him to fill the assignment of depotmaster at Gest Street Station, Cincinnati. This decision was appealed to the highest officer designated by the Carrier to whom appeals may be made, who agreed with the decision of the Agent. Under Rule 16, his decision was final. In this situation, the Board does not have authority to make a decision different from that made by the Agent and concurred in by the highest officer designated by the Carrier to whom appeals may be made.
(d) There was no violation of the effective clerical agreement when Rate Clerk Kolhoven was not awarded the assignment of depotmaster. Carrier has not failed or refused to assign the senior qualified applicant for the assignment. To the contrary, "the senior qualified employe" (the senior employe possessing merit, capacity and qualifications sufficient to fill the assignment) was assigned to the position of depotmaster as provided in Rule 16 (a) of the effective agreement. Such employe had bad the required training and possessed the necessary skill and ability to do so. This was not true of Claimant Kolhoven.
(e) Claim being wholly without merit and unsupported by the effective clerical agreement, and principles of prior awards, should be denied. Carrier urges the Board to so hold.
All evidence in Carrier's submission has heretofore been made known to employe representatives.
OPINION OF BOARD: The important facts in this claim are not in dispute. A vacancy occurred in the position of Depotmaster at Gest Street 6844-31 702
Depot, Cincinnati, Ohio, which was first bulletined on November 7, 1952. There were objections by the Organization to the descriptions contained therein and the bulletin was cancelled and a new one issued on November 15, 1952. This complete bulletin appears in the record with description of preponderating duties.
Four persons bid on the position which was awarded to C. E. Early, whose seniority date is November 19, 1920. Claimant, a rate clerk, has a seniority date of November 11, 1917, and the claim is based on Carrier's failure to award him the position as the senior qualified bidder and for loss of earnings suffered by reason thereof.
It is contended, in brief, in behalf of claimant that rules of the Agreement, Rules 4, 16, 19, 40, 41, 42, 43 and 44, as well as "Procedure of Determining Employes' Qualifications-Mediation Agreement dated April 21, 1932," Rule 16-Filling Vacancies Under Seniority Rules is particularly applicable as showing the senior qualified employe shall be assigned to the position, and note No. 1 thereto:
On behalf of Claimant the historical background and intended application of the seniority rules in question is outlined starting with Supplement No. 7 to G. 0. 27 written by representatives of the Federal Government during World War I, and later in a reissuance of rules by the U. S. Labor Board in Decision 630, applying on a national basis to all railroads, and contending that this Board later, in interpreting rules, equivalent to Rule 16, issued Decisions Nos. 44, 475, 2680, 2639, 2652, 2985 and others, which it is stated to be interpreting such rules and citing numerous awards which have dealt with like situations.
In brief, it is the contention that Carrier tailored the position, as to duties, to fit an employe previously determined upon for the position and that "experience" was the yardstick used in respect to certain duties in filling the position and that such action has no place here, as sufficient merit, capacity and qualification under Rule 16 are the proper requirements to be considered. Also that Claimant was given no opportunity to qualify, if it were true that such qualification was necessary-, citing Awards 2534, 2638,
On behalf of Carrier's position Rules 15 and 16, Note No. 1 thereto of the Mediation Agreement dated April 21, 1932 are cited, stating that Rule 16 is specific, clear and unambiguous and that the same is applicable to the instant claim, as in Collins v. Atlantic Coast Line, 190 S. E., 817. Also citing Award 5966 on the proposition that the Mediation Agreement, supra, does not supersede the regular scheduled Agreement, as it does not provide for the automatic assignment of any employe to a position. That the determination here made-that claimant was not qualified to fill the position-is a prerogative of Carrier and the burden is on Petitioners to show by convincing proof that the act complained of was prejudicial in its nature as being arbitrary, capricious or unreasonable. 6844-32 703
Carrier also urges that Rules 15 and 16 are controlling and cites pertinent parts of the same to support the position taken, as follows:
It appears in the rules above cited that provision is made to meet varying situations and the prerogative is given management to make determinations in such situations. Here, we cannot say under this record, that this prerogative has been used in a prejudicial manner. There was justification for the action taken in view of the service in certain essential duties.
It is alleged by Petitioners that the duties outlined were "tailor made" to give the position to an employe previously decided upon.
We do not deem this view point to control, but rather consider the question to be determined is: Are the duties outlined necessary and essential to the position? If so, and we find nothing to indicate otherwise, then it must appear that arrier exercised the prerogative given under the Agreement, in a manner which is not arbitrary, capricious and unreasonable. While it may well be that honest minds may differ on the proper use of the appointive power in any given situation, yet, in the absence of abuse of that right, the appointive power cannot be said to have been used in bad faith.
Seniority is a valuable asset and should be carefully guarded, however, the rules under consideration do set out methods by which certain standards are to be given consideration in filling vacancies. The power to fill is given Carrier. Its use of the same is limited by these rules and in the absence of a strong showing that the right has been misused we should not substitute our judgment for that of Carrier, W e do not believe the showing made is sufficient and on that basis we deny the claim.
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 6844-33 104