BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP
CLERKS, FREIGHT HANDLERS, EXPRESS AND
STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6346) that:
(1) Claimant J. P. Buckley has seniority on District No. 4 dating from October 23, 1942. All employes covered by the Agreement have seniority as between themselves in the separate seniority districts provided for in the Agreement. A copy of the seniority roster of District Number 4, as of January 1, 1967, is attached and identified as Employes' Exhibit A.
(2) On June 22, 1966 Mr. L. Konkle, Carrier's District Inspector, issued Bulletin No. 338 advertising two positions titled Inspector-Condition and Breakage to all employes covered by the Agreement. A copy of Bulletin No. 338 is designated Employes' Exhibit B. Claimant Buckley filed proper application for the positions. On June 29, 1966, Carrier issued Bulletin No. 339, notifying all employes that the two positions had been awarded to Edward F. Terczak and A. Leigh Edwards, who had no seniority and no previous employment relationship. The two new employes soon left the service and their names do not appear on the roster as of January 1, 1967.
(7) As Employes' Exhibit K we reproduced an advertisement which appeared in the Philadelphia Bulletin in January 1967 and another which appeared in the New York Times in June 1967. Both were placed by the Carrier and the Board is requested to note that in the Philadelphia paper the requirement which the Carrier has adopted in lieu of the agreement is that the applicant must be an agricultural college graduate, but in New York the applicant must have "some agricultural schooling."
CARRIER'S STATEMENT OF FACTS: Rule 6 of the Agreement between the Agency and the Brotherhood is quoted below in its entirety:
BASIS OF PROMOTION, ASSIGNMENT AND
DISPLACEMENTS
Claimant J. P. Buckley has been employed with the Agency as a cooper in our Philadelphia District since October 23, 1942. The duties of a cooper are essentially to repack and repair damaged packages. Mr. Buckley, with two years of high school, has had no agricultural school training. No evidence has been submitted to the Agency that Mr. Buckley has the fitness and ability to qualify as an Inspector-Condition and Breakage. Accordingly, Mr. Buckley was not awarded one of the positions advertised in Bulletin No. 338 (Agency's Exhibit 1). The two positions were awarded to two new employes: Messrs. A. L. Edwards and E. F. Terezak. Both men, graduates of agricultural colleges, hold bachelor degrees.
OPINION OF BOARD: On June 22, 1966, Carrier issued Bulletin No. 338 advertising two positions titled "Inspector-Condition and Breakage." Claimant, who since his employment in 1942 occupied a position titled "Cooper," filed application. On June 29, 1966, Carrier issued Bulletin No. 339 notifying all employes that the two positions had been awarded to two persons who had no seniority or previous service.
It is the position of Employes that Rules 6 and 7(d) of the Agreement required that Claimant be assigned to one of the Bulletined positions and be given a minimum of 30 working days in which to qualify. Rule 6 reads:
Rule 7(d) is applicable only to employes: (1) awarded bulletined positions; or, (2) exercising displacement rights. Since Claimant was not in
either of these categories the Rule is not applicable in the instant dispute. Cf. Award No. 12461. The issue, therefore, narrows as to whether Carrier violated Rule 6 by its failure and refusal to assign Claimant to one of the bulletined positions of Inspector-Condition and Breakage.
This Board has been petitioned to interpret and apply rules identical or similar to Rule 6 in a great number of disputes. In essence we have held in such cases that: (1) the current possession of fitness and ability is an indispensable requisite that must be met before seniority rights become dominant; and (2) this Board will not set aside Carrier's judgment of fitness and ability unless it is arbitrary or capricious or has been exercised in such a manner as to circumvent the Agreement. See, for example, Award No. 11941, 12461, 13331, 14011, 15164. Also, we have held that for us to set aside a Carrier's judgment the record must contain substantial evidence of probative value that the claimant employe possessed, at the time, sufficient fitness and ability to perform the duties of the position which he sought. Id.
The record in the case before us is barren of evidence that would support a finding that Claimant possessed the indispensable fitness and ability. In fact the record as a whole can be construed as an admission by Claimant that he was lacking in the requisite. For the foregoing reasons 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 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