Award No. 10689
Docket No. CL-9977
NATIONAL RAILROAD ADJUSTMENT BOARD
Richard F. Mitchell, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERICS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
GRAND TRUNK WESTERN RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood that the Carrier violated the Clerks' Agreement:
(1) When January 21, 1957, it assigned Mr. Earl G. Fontaine
to position of Clerk-In-Charge advertised in Bulletin #49 in the
General Accounts Section of the Accounting Department, Detroit,
Michigan, and refused to assign the position to Miss Florence
Mibalc)uc who was the senior bidder.
(2) That Miss Florence Mihalciuc be assigned to position of
Clerk-In-Charge, General Accounts Section, and compensated for
the difference in wages received and what she would have received
had she been properly assigned on this position, and that compensation due will run until the condition has been corrected.
EMPLOYE'S STATEMENT OF FACTS:
On January 16, 1957, the
General Accountant issued Bulletin No. 49. advertising position of Clerk-InCharge for bid. This position was assigned to Mr. Earl G. Fontaine by
bulletin number 56, dated January 25, 1957, effective January 21, 1957, notwithstanding the fact an application had been filed within the bulletin period
by Miss Florence Mihalciuc, an employs senior in service to Mr. Earl G.
Fontaine. Because the Agreement was violated in assigning Mr. Fontaine
to the position, claim was filed and progressed in the usual order up to the
highest officer designated by the Carrier for that purpose without settlement being made. Copies of correspondence exchanged between the parties
are attached hereto and made a part hereof, and identified as Employes' Exhibits "1" through "12". There is an Agreement, effective January 15, 1955,
between the parties, which by reference is made a part of this Statement of
Facts.
POSITION OF EMPLOYES:
This dispute involves the application of
the agreement between the Carrier and the Organization regarding the
proper assignment of employes to positions for which their seniority entitles
them to in accordance with the rules of that agreement. There is in evidence
an Agreement between the parties, from which the following rules are quoted,
in whole or in part, for ready reference:
(3917
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capricious or discriminatory manner, we will not substitute our
judgement for that of the management."
In Award 5025 the Board found:
"The established rule (e.g. Awards 5006, 4485, 4466 and 3273)
is that fitness and ability in the first instance is a matter which rests
on the sound discretion of the Carrier and that once it makes a
finding the senior applicant for a position is lacking in fitness and
ability the employe contesting sufficiency of the finding has the
burden of overcoming it by proof. Otherwise the Carrier's action
will not be disturbed."
Numerous other awards have held similarly.
The claim of the employes should be denied, as not supported by the
Working Agreement.
This case has been handled in the usual manner on the property up to
and including the
highest officer
designated to handle claims and grievances,
and has been declined.
All data contained herein has been in substance, presented to the em.
ployes and is a part of the matter in dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
The pertinent facts are not in dispute. Under
date of January 16, 1957, Carrier issued Bulletin #49 - advertising a new
position of Clerk-In-Charge in the General Accounts Office of the Accounting
Department, Detroit, Michigan. We quote from Bulletin 49, the duties listed:
"Location of Position
Detroit, Michigan
Title of Position
Clerk-In-Charge
Brief Description of Duties: Supervision of General Accounts
Department-Assist General Accountant in preparation of annual reports for I.C.C. Public Service Commission - Tax Assessors -
Income Tax Schedules - Directors reports. Preparation of monthly
budget, Official Payroll and special work of a non-recurring nature."
Claimant, who was the senior employe, made application for the position, but was not assigned thereto, Carrier assigning a junior male employe
thereto.
That the claim was properly presented, appealed on the property and
progressed to this Board, has not been challenged by either party.
The employes contend that Claimant was discriminated against because
of her sex. This Board has ruled that Carriers are not justified in rejecting a
Claimant's application on account of her sex, and with the finding we agree.
Award 7817 - There should be no distinction contained in this or any other
applicable rule between male and female employes, but there must be proof
in the record of the discrimination. There is no proof in this record of discrimination against this Claimant.
Claimant contends that the record shows sufficient fitness and ability
entitling her to the position and that under Rule 8 of the Agreement she
was entitled to the opportunity guaranteed by that rule.
There have been filed with this Division many fitness and ability claims,
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and the Board has held that it is a prerogative of Carrier to determine the
fitness and ability of the Employe, and we will not substitute our judgment,
based solely on a paper record, for that of the Carrier unless it can be shown
that Carrier was arbitrary or capricious in reaching its decision.
In Award 8196, this Division said:
"This Board in passing upon similar cases has formulated certain principles, the most basic of which is that it is the prerogative
of Management to determine fitness and ability of applicants and
that this Board will not substitute, on a paper record, its judgment
for that of the Carrier unless it can be shown that the Carrier's
action was an abuse of discretion.
A good exposition of the applicable principles are set forth in
Award 3273 (Carter) here reiterated:
"It is the function of management to select competent employes.
Except when it has limited itself by contract, the right to selection is
wholly within the discretion of management. Award 3151. Under
the cited rule, the Carrier has the right to determine in the first
instance the fitness and ability of applicants for the position.
Award 2427. Fitness and ability for promotion to a position of
greater responsibility must be commensurate with the requirements
of the position to be filled. Award 2990. Fitness and ability does not
mean that the applicant is immediately qualified to step in and assume
the duties of the position without guidance or assistance. Award
2427. It means that the applicant must have such training, experience
and character as to raise a reasonable probability that he would be
able to perform all the duties of the position within a reasonable
time, usually the qualifying period fixed by the Agreement itself.
The Carrier is required under the rule to give the position to the
senior applicant if his fitness and ability are sufficient and it may not
properly insist upon the right to make the assignment to the applicant
which it deems best qualified. Award 2534. After the Carrier has
determined that a senior applicant lacks sufficient fitness and ability,
the burden is upon such applicant to establish that he possessed
reasonable sufficient fitness and ability to occupy the position.
Award 1147. Where there is evidence, which if believed, is sufficient
to sustain the Carrier's judgement that a senior employe lacks
sufficient fitness and ability for the position sought, the judgment
of the Carrier will not be disturbed. Award 3057. Otherwise stated,
whether an employe possesses sufficient fitness and ability for a
position within the meaning of the rule is a matter exclusively for
the Carrier to determine and such a determination once made will
be sustained unless it appears that the action of the Carrier was
capricious or arbitarary. Award 2692."
Rule 5 of the Agreement is the specific rule covering the right of an
employe to a particular position.
We quote Rule 5:
"RULE 5 - PROMOTION, ASSIGNMENTS AND
DISPLACEMENTS
Employes covered by these rules shall be in line for promotion.
Promotion, assignments, and displacements shall be based on senior-
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ity, fitness and ability; fitness and ability being sufficient, seniority
shall prevail.
Note: The word 'sufficient' is intended to more clearly establish
the right of the senior employe to bid in a new position or vacancy
where two or more employes have adequate fitness and ability."
It will be noted that Rule 5 provides that promotion shall be based on
"seniority, fitness and ability, fitness and ability being sufficient, seniority
shall prevail." The Carrier held that the Claimant did not qualify for the
position.
The record shows that the Carrier's decision was entirely proper. The
primary duties of the new position were the supervision of employes in
the General Accounts Department and the preparation of Annual Reports
for the I.C.C. Public Service Commission, Tax Assessors, etc. as set out
in
the Bulletin.
Miss Mihalciuc requested a hearing to discuss the reason she was not
awarded the position. That hearing was held, and the record shows that
she had little if any experience in preparing the reports that the new employe was required to prepare. That her position was that of StenographerClerk, and that she had held only stenographic positions.
The Organization argues that the Carrier was contractually obligated
to grant Claimant a 30 day trial period on this position under the provisions
of Rule S. With this, we do not agree. Rule S does not apply in this case
as the Claimant was denied the position.
The Carrier was right, and there must be a denial Award.
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 was no violation of the Agreement.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 19th day of July 1962.