Docket No. CL-16893
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John H. Dorsey, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
ILLINOIS CENTRAL RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the System Committee of the
Brotherhood (GL-6178) that:
(a) Carrier violated the Clerks' Agreement at its 63rd Street
Accounting office, Chicago, Illinois, when on May 27, 1964, it awarded
a bulletined position to a junior employe, E. S. Jablonski, to the exclusion of senior applicants, Clerks C. Kazmier, P. Rocco, G. Chaney,
J. Harrold, J. Lurgio, who made application for the bulletined position in accordance with the Agreement Rules.
(b) Clerk C. Kazmier shall now be compensated 68 cents per
day for May 27, 1964, and each subsequent work day.
(c) Clerk P. Rocco shall now be compensated 68 cents per day
for May 27, 1964, and each subsequent work day.
(d) Clerk G. Chaney shall now be compensated $1.16 per day
for May 27, 1964, and each subsequent work day.
(e) Clerk J. Harrold shall now be compensated $1.16 per day
for May 27, 1964, and each subsequent work day.
(f) Clerk J. Lurgio shall now be compensated 68 cents per day
for May 27, 1964, and each subsequent work day.
EMPLOYES' STATEMENT OF FACTS: On May 25, 1964, Bulletin No.
70 advertising vacancy on Position No. 26, Accountant, Car Repair Bureau,
daily rate $24.01, was issued by the Accounting Department. There were six
(6) applicants for the position and in seniority order they were as follows:
Name Seniority Date Rate of Pay
C. S. Kazmier October 18, 1951 $23.33
P. J. Rocco December 17, 1951 $23.33
G. E. Chaney June 8, 1953 $22.85
J. A. Harrold November 3, 1958 $22.85
J. B. Lurgio December 8, 1958 $23.33
E. S. Jablonski March 2, 1959 $23.56
On May
27, 1964, Position No. 26 was awarded to junior employe E. S_
Jablonski and by virtue thereof the seniority rights of
the senior
applicants
and Rule 6, among others, of the current Agreement were violated.
Claim was filed with Auditor of Disbursements, S. G. Bucher, on July 15,
1964. See Employes' Exhibits Nos. 1-A and 1-B. August 12, 1964, claim was
appealed to General Auditor, G. M. Craig. See Employes' Exhibits Nos. 2-A
and 2-B. November 16, 1964, claim was forwarded to Employes' General
Chairman for further handling. See Employes' Exhibit No. 2-C. On November
25, 1964, claim was appealed to Assistant Comptroller, K. H. Lyrla. See Employes' Exhibits Nos. 2-D and 2-E. January 20, 1965, claim was appealed to
Manager of Personnel, W. J. Casein, as evidenced by Employes' Exhibits Nos.
3-A through 3-H. Claim was discussed in conference April S, 1965, but not
resolved.
(Exhibits not reproduced.)
EMPLOYES' STATEMENT OF
FACT'S: On May 25, 1964, position No.
26 was bulletined in the Car Repair Bureau of the office of the Auditor of
Disbursements. The position consisted of auditing Illinois Central Railroad
bills for collection made against foreign Carriers for repairs to railroad cars.
The chief
requirement of the position was that its occupant have a thorough
knowledge of the AAR interchange rules and billing procedures.
Six employes applied for the job. They included in order of seniority
C. S. Kazmier, P. J. Rocco, G. E. Chancy, J. Harreld, J. B. Lurgio, and E. S.
Jablonski. The job was awarded to E. S. Jablonski,
Line
only applicant with
experience in
the Car Repair Bureau, and who, by company standards, was
the "senior applicant possessing sufficient fitness and ability" to handle the
position.
The union filed a claim, arguing that the company had violated the
seniority rights of the five senior employes. The company declined the claim
on the basis that Jablonski was the only employe with sufficient ability to have
seniority considered. The company also contended that five persons could
not possibly claim rights to the same job simultaneously. The correspondence
exchanged on the property is attached as Carrier Exhibits A-H.
The agreement between the parties is by refererce made a part of the
record in this dispute.
(Exhibits not reproduced.)
OPINION OF BOARD:
On May 25, 1964, Carrier advertised a position of
Accountant.
On May 27, 1964, the position was awarded to one E. S. Jablonski who was
sixth in seniority among
the applicants
. Clerks contend that the award violated
the seniority rights of the five senior applicants.
The pertinent provision of the Agreement is:
"RULE 6. PROMOTION BASIS
Employes covered by these rules shall be in line for promotion.
Promotion shall be based on seniority, fitness and ability; fitness and
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ability being sufficient, seniority shall prevail, except that this provision shall not apply to the excepted positions.
NOTE: The word 'sufficient' is intended to more clearly establish the right of the senior clerk or employe to bid in
a new position or vacancy where two or more employes
have adequate fitness and ability."
Carrier says that Jablonski was the senior applicant having sufficient
fitness and ability and therefore the award of the position to him was in
compliance with Rule 6. Clerks aver that:
"Rule 6 clearly states that seniority is to be considered first,
followed by fitness and ability; and that when one or more employes
bid on a position, fitness and ability being sufficient, seniority shall
prevail. The explanation under 'Note' clearly indicated that the word
'sufficient' is intended to more clearly establish the right of the senior
employe in his bid for a position, and specifies that adequate fitness
and ability is a qualification."
Further Clerks allege:
"It is unrealistic to believe that the five senior applicants with
seniority as Accountant, dating from six years to fifteen years, on
various positions, did not possess sufficient fitness and ability or could
not have acquired it in a relatively short time."
We held in Award No. 12461, involving these same parties and Agreement, that:
"As to Rule 6, we ate cognizant that it contemplates that promotions will be awarded to the senior employe bidder having 'sufficient'
fitness and ability; and, not to a junior employe bidder having
'fitness and ability' superior to that of a senior employe_
We have long recognized that the determination of 'fitness and
ability' is, in the first instance, a prerogative of management. Only
if proven by a prepondcrance of evidence that the judgment of managcmcnt was arbitrary, unreasonable, or exercised to circumvent
the Agzcement, will wo find thct munagcment violated an Agreement provision like Rule 6. We are not naaware that this places a
heavy, sometimes difficult, and sometimes impossible burden of
proof on a Petitioner."
And, in recent Award No. 16360, also involving these same parties and
Agreement, we reaffirmed our holdings in Award No. 12461.
In the record before us Clerks have failed to adduce evidence of probative
value that any of the five senior applicants, Claimants herein, had sufficient
fitness and ability to perform the particular duties of the position at the
time it was awarded, pursuant to bulletin, to Jablonski; nor does it deny that
Jablonski possessed these requisites, Clerks, therefore, failed to prove its case.
We will deny the Claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
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That the parties waived oral hearing;
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 Carrier did not violate 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 2nd day of August 1968.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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