BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
SOUTHERN PACIFIC COMPANY-TEXAS AND LOUISIANA
LINES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood, (GL-5493) that:
EMPLOYES' STATEMENT OF FACTS: Mrs. Mattie E. Watson was employed by the carrier as a laborer in its Store Department at Houston on March 1, 1944 and she continued to hold a regular assignment as Laborer in that department until May 21, 1962. Just prior to May 21, 1962, she was en vacation and upon returning to work on that date following her vacation found that she had been displaced off her regular position by a senior employe due to a force reduction. Upon discovering that she had been displaced by a senior employe she contacted General Forman A. J. Joyce, Jr., advising him that she desired to displace iS. J. Boutte who held a Common Laborer's position and who was her junior. Mr. Joyce advised her that she could work until noon that day and in the meantime he would consult Storekeeper Reynolds to determine if she would be permitted to displace Boutte. At noon Mr. Reynolds advised her that she would not be permitted .to displace Boutte, although 'she had been performing the same type work that he was. When Mr. Reynolds advised her she could not displace Boutte she wrote Mr. T. E. Martin, Purchasing Agent, advising him that due to the fact that her
CARRIER'S EXHIBIT NO. 4 reproduces this Award of Special Board of Adjustment No. 100.
Carrier has shown that Mrs. Mattis E. Watson was employed as common laborer in the Stores Department at Houston when it was impossible because of the War to employ men capable of performing all of the work of common laborer. Carrier has shown that Mrs. Watson was given employment as long as there .was a position available to her by reason of her seniority, the duties of which were light enough for her to perform. Carrier has shown that the decision to deny Mrs. Watson the right to displace on a job, all of the duties of which she was not capable of performing, was a proper one. Carrier has shown by the Claimant's own statement that she was incapable of performance of even the light work to which she was assigned. Carrier has shown that Claimant and her representatives did not avail themselves of the opportunity under the Rules for a hearing but were content to rely upon seniority alone as a basis for the claim here presented. Carrier has shown that claimant has failed in her responsibility to present positive proof to support this claim.
Wherefore, premise considered, Carrier respectfully requests that the Board deny in all its particulars this claim.
OPINION OF BOARD: Claimant, a female, was employed as a laborer. She sought unsuccessfully, to displace a male laborer whose seniority was junior to hers. Petitioner avers: (1) Claimant had a contractual right to displace the junior employe; and, (2) she was denied exercise of the right because of Carrier's intent to rid itself of female laborers.
Carrier says it did not permit Claimant to effect the displacement because she lacked sufficient fitness and ability to perform the tasks of the position. It states that in making the determination, Claimant's age, sex, and physical condition, along with the nature of the work, were among the factors considered. To this Petitioner responds that Claimant had been employed as a laborer for a number of years; ergo, she had the fitness and ability to perform the work of any laborer position.
The issge, as framed on the property, is whether Claimant possessed the fitness and ability to perform the work of the position on which she attempted to displace the incumbent.
In the instant case Petitioner has not proven that the action of Carrier was arbitrary or capricious or designed to circumvent the Agreement. We will deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respec tively 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
LABOR MEMBER'S DISSENT TO AWARD 14055,
DOCKET CL-14821
The Referee erred in basing his decision on the "promotion" rule of the Agreement, as there was no "promotion" involved. Rule 12-Promotion Basis-never entered the picture in this dispute, since Claimant was not seeking a promotion, but was merely seeking to displace a junior employe who was holding a "laborer" position, a position exactly the same as the position from which Claimant had been displaced by an employe senior to 14055-18 5518
leer, both of which carried the same rate of pay. Claimant had held a position of "laborer" since March 1, 1944 (more than eighteen (18) years), and it is axiomatic that she was fully qualified to work a position of laborer and was not open to question under any rule of .the agreement concerning qualifications, fitness and ability.
To support his decision, the Referee cites Award 12994 (Referee Hall), but he can hardly find support therein, for the Referee found that the position was re-established for a short period of time and the former incumbent was assigned thereto to explain and perform the duties of a newly-established combined position which differed from those with which Claimant was familiar. That is not a fact in this dispute, since no position of laborer was bulletined or re-established and Claimant would simply have been moving from "laborer" to "laborer" with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe. Generally, promotion carries with it a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
In Award 12994, the Referee cited Awards 3273, 10000, 10689, 11572 and 12433. A mere reading of those Awards clearly establishes that they differ substantially from the instant dispute, Le.:
Award 3273: Position of Traveling Auditor was bulletined and the Claimant applied therefor and was found to lack the fitness and ability for promotion to a position of greater responsibility commensurate with the requirements of the position to be filled; Claimant sought promotion to a position other than in the classification in which he had been working. That is not a fact in this dispute, since no position of laborer was bulletined for bids, and Claimant would simply have been moving from "laborer" to "laborer" with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe. Generally, promotion carries with it a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
Award 10000: Position of Relief Clerk was bulletined and Claimant therein filed application. The Referee found that "a search of the record fails to reveal any evidence of a probative nature presented on behalf of the Claimant which shows that he was qualified" to operate four different types of IBM machines, duties which he had never before performed for Carrier; Claimant was aspirant for promotion to a position other than in the classification in which he had been working. That is not a fact in this dispute, since no position of laborer was bulletined for bid, and Claimant would simply have been moving from "laborer" to "laborer" with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe. Generally, promotion carries with it a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
Award 10689: Position of Clerk-In-Charge was bulletined and the claimant made application therefor; the Referee held that the record showed that she had little if any experience in preparing the reports necessary to the 14055-19 519
position, that she had held stenographic positions only. The promotion rule of the agreement was relied upon by the Employes since the Claimant aspired to a different class of work. That is not a fact in this dispute, since no position of laborer was bulletined for bid, and Claimant would simply have been moving from "laborer" to "laborer" with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was. required to exercise her seniority downward, that is, she was, of necessity,. required to displace a junior employe. Generally, promotion carries with it. a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
Award 11572: Position of Mail Clerk was bulletined and Claimant bid for such position although it was in a classification other than any position en which she had previously worked for Carrier. The Promotion Rule of the Agreement was relied upon in support of the Employes' position. That is not a fact in this dispute, since no position of laborer was bulletined for bid, and Claimant would simply have been moving from "laborer" to "laborer"' with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe.. Generally, promotion carries with it a higher rate of pay. There was no, difference in rate of pay of laborers in this dispute.
Award 12433: This Award as the only one cited which could be considered in any way to be material with the instant dispute. It concerned an employe attempting to displace a junior employe. That is as far as the similarity can be extended. In this Award, Claimant failed to bid for a new position, and it was assigned to a junior employe. After taking a leave of absence, Claimant advised she was returning to service and desired to displace the successful incumbent. This would have been a promotion; however, the bulletined duties thereof could not be performed by Claimant, as. was determined through actual tests being given to her which she could not pass, i.e., "ability to take and transcribe dictation at a rapid rate.", and the Referee held that her "performance in the test she took demonstrates that she did not possess the skill necessary to satisfy the qualifications for the job in question". None of those facts are present in the instant dispute: No position of laborer was bulletined for bid, and Claimant would simply have been moving from "laborer" to "laborer" with no difference in rate of pay, duties, classification of work, location, etc; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe. Generally, promotion carries with it a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
This claim reeked of Carrier's desire to rid itself of female employes, evidenced by the fact that rather than to abolish positions held by the "junior" employes, Carrier abolished positions occupied by female employes (this Claimant and female claimants involved in Dockets CL-14835, 14837, 14856 and 14852, all carrying similar decisions rendered by this Referee). Why should carrier abolish positions occupied by female employes when it had similar positions occupied by junior employes who happened to be male? The answer is obvious.
The Referee took little time to decide this dispute and, we might add, a somewhat lackadaisical interest in the issue involved. Had he taken time 14055-20 520
Here, as in that dispute, Carrier had no contractual right whatever to reject Claimant's request for displacement for lack of qualifications, for she was not seeking promotion but merely seeking to exercise her displacement rights to another laborer position exactly like the one from which she had been displaced by a senior employe (male), carrying the same rate of pay, duties, classification, location, etc.; however, such a move would have been a demotion, since the position she desired had been abolished and she was required to exercise her seniority downward, that is, she was, of necessity, required to displace a junior employe. Generally, promotion carries with it a higher rate of pay. There was no difference in rate of pay of laborers in this dispute.
The seniority dates of laborers are not listed on a seniority roster, but their seniority rights will apply after they have been in continuous service with the railroad in excess of six (6) months (Rule 10-Seniority Rosters). Seniority rights of employes covered by these rules may exercise * * * in case of * * * reduction of forces (Rule 11-Exercise of Seniority).
Carrier asserted that Claimant could not fulfill the duties required of the position of "laborer"; but, that is one of the reasons for Rule 19 providing as it does, i.e.; "An Employe who * * * makes a displacement and fails, within a reasonable time, to demonstrate fitness and ability, shall vacate the position on which disqualified without loss of seniority".
Thus, Rule i19 is a protection for Carrier. However, this rule, cited by the Employes in support of their claim, is not a one-way street wholly for the Carrier's protection; the language is unambiguous, in that it provides "employe who makes a displacement", not "employe who is permitted to make a displacement". But the Carrier has by its action in this dispute, added the word "permitted", and its action has been condoned by this Referee, 14055-z2 522