Award No. 7817
Docket No. CL-7338
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Livingston Smith, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
UNION PACIFIC RAILROAD COMPANY
(Northwestern District)
STATEMENT OF CLAIM:
Claim of the General Committee of the
Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express
and Station Employes that:
(1) The Carrier violated the Clerks' Agreement when on
July 2nd, 1953 it failed to assign Greta McShain to a tern orary
position of Head Train and Enginemen Timekeeper in the Central
Timekeeping Bureau, Portland, Oregon-
(2) The Carrier shall now be required to compensate Greta
MeShain for difference in what she earned as Train and Enginemen Timekeeper and what she would have earned as Head Train
and Enginemen Timekeeper from July 6th to July 17th, 1953,
both inclusive.
EMPLOYES' STATEMENT OF FACTS: On July 1st, 1953, the
Carrier posted a special Bulletin No. 10 which is provided for under Rule 12
(e) of the Clerks' Agreement, copy of this Bulletin is attached as Exhibit
A". On July 2nd, 1953, Greta Mcshain who held a regular assignment
as Train and Enginemen Timekeeper, and had seniority date of November
6th, 1922, made the proper application for the position of Head Train and
Enginemen Timekeeper.
On July 2nd, 1953, Leo E. White, who held regular assignment of
Train and Enginemen Timekeeper (Vacation Clerk) and whose seniority
date was August 30th, 1924, was assigned to the position, and on the same
date Supervisor of Wage Schedules, Mr. Sather, wrote reta MeShain, advising her the reason she had not been assigned to the position, copy of
letter attached as Exhibit "B". On July 3rd, 1953, Miss MeShain replied
to the Supervisor of Wage Schedules, copy
of
which is attached as Exhibit
"C", and on July 7th, 1953 Division Chairman F. W. Madden, wrote the
Supervisor of Wage Schedules presenting claim for Miss MeShain, copy
of his letter is attached as Exhibit "D" and copy of Supervisor of Wage
Schedules Sather's reply is attached as Exhibit "E".
Under date of July 28, 1953, Division Chairman Madden appealed to
the Assistant General Chairman for further handling, and on August 7th,
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All information and data contained in this Response to Notice of Ex
Parts Submission is a matter of record or is known by the Organization.
The claim should be denied.
(Exhibits not reproduced.)
OPINION OF BOARD:
Claim is here presented in behalf of one Greta
MeShain, regularly assigned Train and Engineman Timekeeper, for the difference in the rate of that position and the rate of the position of Head Train
and Engineman Timekeeper between July 6 and 17, 1953, inclusive, account
of allegedly having been denied opportunity of occupying temporary vacancy in said higher rated position.
The Organization takes the position that the Claimant as the senior employs making application to fill the temporary vacancy was entitled to fill
same within the meaning of Rule 12 (a) and (e). It was pointed out that
claimant's past experience as a Train and Engineman Timekeeper precludes
a finding of lack of necessary ability to perform the duties in question and
that her request obviously denied for reasons other than those permissible
under the rules, namely because she was a female employe. It was further
contended that Rule 8 of the Agreement, here relied upon by the Carrier is a
general rule and as such cannot prevail as against Rule 12 (a) and (e) a Special rule.
The Respondent countered with the assertion that it quite properly considered the fitness and ability of claimant as was permissible under Rule 8,
and in so doing, found that claimant was not possessed of the required fitness
and ability to perform the duties, and was likewise not qualified physically or
temperamentally to hold down the temporary vacancy. It was further pointed
out that a portion of the work to be performed was located in an isolated
building, said location being neither a safe nor a proper place for a female
employe to work alone.
Rules 8, and 12 (a) and (e) relied upon by the parties provide:
"RULE 8. Promotion, Assignments and Displacements. Employes covered by these rules shall be in line for promotion. Promotion, assignments and displacements shall be based on seniority,
fitness and ability; fitness and ability being sufficient, seniority shall
prevail, except, however, that this provision shall not apply to the
positions listed in Rule 1 (e).
"NOTE: The word `sufficient' is intended to establish more
clearly the rights of the senior employe to a new position or vacancy where two or more employes have adequate fitness and ability.
"RULE 12. Temporary Assignments and Short Vacancies. (a)
Bulletined positions may be filled temporarily pending an assignment as provided in section (e) of this rule and, in event bulletin
fails to develop an application, the position may be filled by appointment except as provided in Rule 18.
"(e) New positions or vacancies not bulletined in accordance
with this rule will be assigned to th~ senior qualified applicant in
the office or station making written application within twenty-four
hours from time vacancy is declared.
"When necessary to fill position or vacancy while under bulletin, senior qualified employe in the office or station making written
application will be assigned pending assignment under bulletin, in
which event the bulletin will constitute declaration of vacancy.
"When necessary to fill temporary vacancies or positions which
are not bulletined, notice will be posted on bulletin boards in the
office or station where vacancy occurs.
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230
"Pending assignment of the senior qualified applicant as provided herein or in the event no applications are received, the vacancy may be filled by rearranging the force on the same shift in the
office or station where vacancy exists. Vacancies not filled through
rearrangement of the force may be filled in accordance with provisions of section (d) of Rule 18.
"Employes who work a second shift within a twenty-four hour
period to fill a temporary vacancy before expiration of the twentyfour hour notice account no qualified extra or furloughed employe
available, will be allowed time and one-half for the second shift
worked.
"Employes assigned to temporary vacancies in accordance with
this section (e) will not be subject to displacement except in case
of reduction in regular force."
The record is clear that claimant was the senior employe who applied to
fill the vacancy in question. Likewise her application was timely. She had
held the position of Train and Enginemen Timekeeper for a number of years
and was evidently acquainted with the work requirements of the higher rated
position.
There is no noted exception contained in Rule 12 (e) that permits the
assignment of any employe other than senior qualified employes making application for a vacancy within the specified time. There is no distinction
contained in this or any other applicable rule between male and female employes.
We conclude that claimant's disqualification here was based primarily
if not exclusively on the fact that claimant was a woman. This is evidenced
by A. Sather's communication to claimant which reads as follows:
"Portland-July 2, 1963
"Miss Greta McShain:
A twenty-four hour notice was posted calling attention to the
temporary vacancy on position of Head T&E Timekeeper and
although you were the senior bidder have found it necessary to assign
Mr. Leo White under the rule that provides for the assigning of the
senior qualified bidder.
As you know, one of the requirements of the position of Head
T&E Timekeeper is the filling and maintaining of records in the
office and record room, both in this building, and in the old Marshall
Street warehouse. Do not believe it would be proper to assign a
woman employe to go to the Marshall Street warehouse, for example
and handle the heavy records there and be by herself in that isolated
building for several hours. Further, it is necessary that the incumbent of this position be required to go to the basement warehouse in
this building and bring up the heavy records.
Although the rules do not require that I notify you of the reasons that you were not assigned on the twenty-four hours notice,
I wanted to explain to you why you were not given the assignment,
as I believe you overlooked the handling of the heavy records here
and in the Marshall Street warehouse.
A. Sather (Signed)"
as well as the subsequent denial by the Vice President during subsequent handling on the property.
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It is noted that in neither instance was the question of claimant's basic
qualifications raised. Likewise it is noted that claimant had, at other times,
worked in this facility. The question of isolation of, and lak of heat in the
facility had nothing to do with either claimant's abiity or the application of
Rule 12 (e) the controlling rule here.
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 the Carrier violated the effective agreement.
AWARD
Claims 1 and 2 sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: A. Ivan Tummon
Executive Secretary
Dated at Chicago, Illinois, this 22nd day of April, 1957.