THIRD DIVISION
(Supplemental)
answering in detail the ex parts submission on any matters not already answered herein, and to answer any further or other matters advanced by the Petitioner in relation to such issue or issues.
All data submitted herein has been presented in substance to the duly authorized representatives of the Employes and is made a part of the particular question in dispute.
OPINION OF BOARD: This docket presents two questions for decision. (1) Did Carrier err in failing to assign Claimant to position of OperatorClerk at Cookeville, Tennessee, on or about March 21, 1957? (2) Did Carrier assign proper seniority date for Claimant?
At Cookeville, the Carrier maintained two positions in the station force. One was classified as Agent and the other Operator-Clerk. Both positions were covered by Telegraphers' Agreement.
On or immediately prior to January 7, 1957, the occupant of the Operator-Clerk position resigned. The Agent notified Carrier's Chief Dispatcher and requested assignment of a qualified extra employe to the position. There were no available qualified extra employes.
The Chief Dispatcher was aware that Claimant, B. C. Matheney, then occupying position of Clerk, at Monterey, Tennessee, was studying telegraphy. On January 7, 1957, in telephone conversation between Chief Dispatcher and Claimant, it was arranged that Claimant would report at Cookeville, on January S, 1957, to begin service on the temporary vacancy.
In due course, the vacancy at Cookeville was bulletined in accordance with the rules and on February 13, 1957, assigned to H. J. Matheney, brother of Claimant. Mr. H. J. Matheney was not placed on the position, due to his working at Monterey. On March 4, 1957, H. J. Matheney was successful applicant for position at that point and the position at Cookeville was again bulletined.
On March 5, 1957, Claimant made application for the position, but on March 21, 1957, Chief Dispatcher assigned the vacancy to a junior employe on the ground Claimant was not qualified for the position. The position required qualified Morse telegrapher.
The Organization contends that the Claimant was fully qualified for the position of Operator-Clerk at Cookeville, at the time he made application therefor, and at the time the assignment was made on March 21, 1957, to the junior employe. There is no dispute as to the criteria to be utilized by the Board in making the determination of this question. Both sides agreed that the rule primarily involved is Rule 17 (a) reading:
It is agred that the burden of proof is upon the Claimant and the Organization to show that Claimant was qualified for the position applied for, since assignment to a regular assigned position is treated as a promotion. 11974-38 611
The record does not permit a doubt that on January 8, 1957, when Claimant was assigned to position of Operator-Clerk at Cookeville, to fill the temporary vacancy, that he was not fully qualified to perform all the telegraphic duties of the position. The main thrust of the Organization's position is that his work on the position, five days each week (Monday through Friday), from January 8 through March 21, 1957, qualified him for promotion to the regular assignment. Although the record shows that application for the vacancy was entered by Claimant, on March 5, 1957, for the purpose of this opinion, we will consider his qualifications, as shown by the evidence, as of March 21, 1957, the date the junior employe was assigned.
On March 20, 1957, Chief Dispatcher Loden wrote the Claimant as follow,.
We find nothing in the record to indicate that Chief Dispatcher Loden was motivated, in his decision, by other than an honest belief that Claimant was not then qualified to perform all of the duties of the position. This is further supported by the fact, that when the Cookeville position again became vacant, in June, 1957, that Claimant applied for it and was assigned thereto by the Chief Dispatcher, being placed thereon commencing June 24, 1957.
We have fully and carefully evaluated all of the evidence ofered by the Claimant and on his behalf. While this evidence, tends to shown that he was, in fact, occupying the position, and performing work thereon, during the period January 8 through March 22, 1957, it does not meet the standard of probative value necessary to overturn the decision of the Chief Dispatcher. Otherwise stated, it does not show that the actions of the Chief Dispatcher, in declining to award the regular assignment to Claimant, were arbitrary or capricious. The Chief Dispatcher had the responsibility of appointing an employe to the regular assignment, who had the necessary qualifications. The evidence does not show that Claimant possessed the requisite qualifications at that time. This part of the claim will be denied.
On September 13, 1957, Carrier issued seniority roster, dated July 1, 1957. This roster showed seniority date of April 27, 1957, for Claimant, B. C. Matheney. The Organization, on behalf of the Claimant, immediately contested this date, contending that the correct date was January 8, 1957. 11974-39 612
The record shows that Claimant was employed as Operator-Clerk, Cookeville, a position covered by Telegraphers' Agreement, from January 8, 1957 to March 22, 1957, inclusive. The record further shows that he worked, on relevant dates, as follows:
Carrier contends that the April 27, 1957 seniority date was fixed, because this was the date that Claimant passed train rules examination. There is no showing, however, that Claimant could not have passed such examination on January 8, 1957 or any other relevant date. The fact that Carrier did not choose to give examination on its operating rules until April 27, 1957, would not have any bearing on seniority of Claimant. There are no limitations in Rule 17 (c) in this regard. Entering service in the classes covered by the agreement, and not qualifications for certain positions, is the criteria.
While it is true that Claimant performed service in two clerical positions, for nine days, following his service under the Telegraphers' Agreement at Cookeville, Rule 17 (p) makes provision for such temporary transfer. Here it is provided:
We hold that Claimant entered service in the classes covered by Telegraphers' Agreement on the 8th day of January, 1957. It is clear from his work record, as set forth herein, and his acceptance of regular assignment at Cookeville, commencing June 24, 1957, that his entry into service covered by Telegraphers' Agreement was in every respect bonafied; and, that he did not lose such rights by temporarily working as a clerical employe. Claimant is entitled to seniority date of January 8, 1957, on Telegraphers' Seniority Roster.
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 11974-40 613