SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6188) that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an Agreement bearing effective date October 1, 1940, reprinted May 2, 1955, including subsequent revisions, (hereinafter referred to as the Agreement) between the Southern Pacific Company (Pacific Lines) (hereinafter referred to as the Carrier) and its employes represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes) which Agreement is on file with this Board and by reference thereto is hereby made a part of this dispute.
Employe G. A. Brice, hereinafter referred to as Claimant, was on the guaranteed Extra Board, Master Seniority Roster No. 5, immediately prior to the time this dispute arose. With said status he bid for and was assigned to Relief Telephone Operator Position 3(T), Los Angeles PBX, Communications Department, effective September 1, 1964. Upon reporting for Position 3(T) on September 14, 1964, Claimant was told that he would be required to "break in" before being placed thereon. He broke in September 14, 15, 16 and, on September 16, was told that he was disqualified.
The position of machine operator being filled by claimant on a hold-down basis had assigned hours 3:00 P. M. to 11:00 P. M., rest days Monday and Tuesday and on Monday, August 31, 1964, claimant observed operation of the switchboard between the hours of 5:00 P. M. and 9:00 P. M. Subsequent to that date claimant made no further effort to train as a telephone operator until Monday, September 14, 19154, after he had been released from his hold-dawn assignment at the General Telegraph Office, at which time claimant trained at the PBX telephone switchboard between 8:00 A. M. and 5:00 P. M., that date. He also trained during those same hours on Tuesday and Wednesday, September 15 and 16, 1964, immediately following which he indicated to the Chief Telephone Operator that he wanted to work Position No. 3 commencing at. 11:00 P. M. on the latter date.
During the dates of training, claimant demonstrated conclusively that he lacked the necessary dexterity and coordination and was particularly awkward with the use of his left hand, which caused him to rely too much on the use of his right hand when operating a switchboard and he was unable to handle several calls simultaneously. It became obvious to Chief Telephone Operator McCulloch that claimant was unable to work alone, which he would be required to do when relieving Position No. 533 on Thursday and Friday. Also, he would be alone for one hour when relieving Position No. 536 on Saturday and Sunday. Under such circumstances at 5:00 P. M., Wednesday, September 16, 1964, Chief Telephone Operator McCulloch advised claimant that he was disqualified in handling the duties of Position No. 3 and that he should report to the Guaranteed Extra Board for further assignment.
On October 1, 1964, the regular assigned incumbent of Position No. 3 returned from sick leave, thereby terminating temporary vacancy on that position.
4. By letter dated September 30, 1964 (Carrier's Exhibit A), Petitioner's Division Chairman submitted claim in behalf of claimant to Carrier's Superintendent of Communications for eight hours' compensation at the applicable pro rata rate of Position No. 3 beginning Monday, September 14, 1964, and subsequent dates of that assignment including additional eight hours' compensation at the Guaranteed Extra Board rate $19.2524 for Tuesday and Wednesday, September 15 and 16, 1964. By letter dated October 22, 1964 (Carrier's Exhibit B), Carrier's Superintendent of Communications denied the claim and by letter dated October 23, 1964 (Carrier's Exhibit C), Petitioner's Division Chairman advised that the claim would he appealed.
By letter dated November 23, 1964 (Carrier's Exhibit D), Petitioner's General Chairman appealed the claim to Carrier's Assistant Manager of Personnel and by letter dated December 23, 1965 (Carrier's Exhibit E), the latter denied the claim.
OPINION OF BOARD: The incumbent of Position No. 3, Relief Telephone Operator, had been granted sick leave and by appropriate notice to clerical employes concerned, as required by Rule 33 of the Agreement, the temporary vacancy thus created was advertised for seniority bid on August 16, 1964.
Claimant herein, who had no experience as a telephone operator, was the senior applicant. According to Carrier Claimant said that if he was assigned. to the vacancy "he would break in and qualify himself for the telephone operator job before endeavoring to take over the assignment" According to Clerks he "was told that he would be required to `break in' before being placed thereon."
On August 31, 1964, Claimant observed operation of the switchboard between the hours of 5:00 P. M. and 9,:00 P. M. He was awarded the position by bulletin dated September 1, 1964 and assigned to it on September 14, 15 and 16, 1964, hours 8:00 A. M. to 5:00 P. M. and trained on those dates. On the latter date he indicated to the Chief Operator that he wanted to work the position starting at 11:00 P. M. that date. On he same date the Chief Operator wrote to the General Superintendent of Communications:
On October 1, 1964, the Chief Operator wrote to the General Superintendent of Communications:
He called up August 3.1, 1964, about 5 P. M. (P. S. T.), wished to· come in on his own time to train. He stayed until about 9 P. M. (P. S. T.), per report of night supervisor. He was released from HU office at 11 P. M. (P. S. T.) September 13. He reported to me Monday, September 14, at 8 A. M. (P. S. T.) and trained the following days:
Under no circumstances was he qualified to take over the 3rd relief by September 16 at 11 P. M. (P. S. T.). He was rather awkward with his left hand and operated mostly with his right hand.
The all night shift in Los Angeles is handled by one operator from 11 P. M. to 7 A. M. (P. S. T.). The 3rd relief assignment requires two all night shifts a week. The chief dispatcher makes a number of important calls during the night, also trainmaster, etc. There are times when derailments happen during the night. All operators should be fully trained, know bow to handle all calls when they arise.
Clerks contend that Claimant having been assigned to the position the Carrier was obligated to give him a reasonable time within which to qualify and to cooperate in his efforts to qualify. It cites Rules 28, 33 (e) and 36 as supporting its contention.
Carrier's defenses are: (1) Clerks and Claimant admit that at the time of the advertising of Position No. 3 Claimant was not possessed of fitness and ability to perform the duties of the position; (2) Carrier's judgment as to Claimant's qualification may be set aside only on proof that it was arbitrarily or capriciously exercised-and it was not so exercised; (3) a bidder for an advertised position must be possessed of fitness and ability to perform the position as of the time he files application-lacking in this he has no right by virtue of seniority to be placed on the position and be given a reasonable time within which to qualify. Carrier relies on Rule 28 and says that Claimant having failed to meet the requirements of that Rule the other Rules cited by Clerks are not applicable.
Of crucial import in the resolution of this dispute is Carrier's admission in a letter from Carrier's General Superintendent of Communications to Clerk's District Chairman, under date of October 22, 1964 that "Clerk Brice was assigned to the relief position involved on September 14, 15 and 16th, 1964 . . . ." Also, the Chief Operator's statement in her letter of October 1, 1964, supra, that Claimant "was awarded 3rd Relief Position by bulletin, September 1, 1964."
We first examine Rule 28, supra. We agree with Carrier's interpretation of that Rule-supported by many Awards of this Board-that an applicant for assignment to an advertised position has no contractual right predicated on seniority to the position unless contemporaneously he possesses fitness and ability to perform the duties of the position. But, we hold that Carrier must exercise its judgment of fitness and ability prior to making an assignment. When it makes an assignment it must be conclusively presumed-side agreements, if any, between an individual applicant and Carrier not withstanding - that, in the Carrier's judgment, assignee had the requisite fitness and ability within the contemplation of Rule 28. Once the assignment is made Carrier may not attack the assignee's fitness and ability as of the time of the assignment. Consequently, the assigned employe is contractually entitled to: (1) be placed on the advertised position within the time prescribed in Rule 33 (e), supra; and (2) be given a reasonable time to qualify with Carrier's cooperation (Rule 36 and Note to Rule 28, supra). Were the Carrier to assign an applicant not possessing fitness and ability to an advertised position it would be destructive of the contractual seniority rights of other applicants having those prerequisites and violative of the Rule.
With the above findings as a premise the issue in this case becomes whether Claimant was given a reasonable time within which to qualify with Carrier's cooperation. The question is answered in Carrier's Chief Operator letter to the General Superintendent of Communications, dated October 1, 1964, supra, wherein she said:
We find that Claimant after assignment to the position was not given a reasonable time to qualify with Carrier's cooperation. We, therefore, will sustain paragraph 1 (a) of the Claim.
Paragraph (b) of the Claim is a prayer for monetary damages suffered by Claimant.
The vacancy on the position to which Claimant was assigned terminated on October 1, 1964.
We will award Claimant monetary damages from September 17 to September 30, 1964, inclusive, computed in accord with the formula prescribed in Rule 33 (e) of the Agreement, supra. To the extent that the prayer in paragraph (b) of the Claim exceeds such amount it is denied.
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