- Award No. 17141









PARTIES TO DISPUTE:

BROTHERHOOD OF RAILWAY, AIRLINE AND STEAM-

SHIP CLERKS, FREIGH THANDLERS, EXPRESS AND

STATION EMPLOYES

CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAIL

ROADCOMPANY


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-6332) that:




EMPLOYES' STATEMENT OF FACTS: Larry M. Neely, who has a seniority date of January 11, 1964 in Minneapolis, Minnesota, Seniority District No. 25, is the regularly assigned occupant of Time Revisor Position No. 10090; rate of pay $22.8384 per day.


E. R. Flaherty is the regularly assigned occupant of Car Distributor Position No. 10050 in Minneapolis, Minnesota, Seniority District No. 25; rate of pay $24.304 per day.


J. A. Messicci, who has a seniority date of July 2, 1963 in Seniority District No. 28, is an extra, or furloughed employe in that district.


Employe Flaherty was scheduled for 10 days vacation beginning on Monday, July 11, 1966; however, due to the injury of his son, he subsequently, while on vacation, requested and was granted permission to extend it and take the two additional weeks vacation which were due him.


Under date of June 27, 1966 employe Neely made request in writing to Superintendent N. H. McKegney for the vacation vacancy on Car Distributor Position No. 10050 during the period July 11th through 22nd, it being unknown at that time that the vacation vacancy on Position 10050 would extend beyond July 22nd. See Employes' Exhibit "A".

his own time on at least 5 different days "breaking in" on Position No. 10050 or, in other words, learing to perform the assigned duties thereof, and who also requested to fill same.


Claimant Neely was not assigned to fill the temporary vacation vacancy on Car Distributor Position No. 10050 because he was not qualified, a fact which he personally admitted in his aforequoted request of June 27, 1966 and a fact with which the Carrier agrees.


It is significant that employe Flaherty was absent on vacation for 20 consecutive work days during the period July 11 through August 5, 1966 and employe Messicci filled the temporary vacation vacancy on vacationing employe Flaherty's regularly assigned Position No. 10050 during the entire period, i.e., July 11 through August 5, 1966, yet the instant claim in behalf of claimant Neely is only for a 10 consecutive working day period from July 11 through 22, 1966.




Letter written by Mr. S. W. Amour, Vice President
Labor Relations, to Mr. H. C. Hopper, General
Chairman, under date of January 10, 1967 . Carrier's Exhibit "B"
Letter written by Mr. Amour to Mr. Hopper
under date of April 10, 1967 Carrier's exhibit "C"
Letter written by Mr. Amour to Mr. Hopper
under date of May 15, 1967 Carrier's Exhibit "D"
Copy of notarized statement from Mr. C. V. Eby,
Assistant to Superintendent at St. Paul, Minnesota Carrier's Exhibit "E"
Copy of witnessed statement dated February 21, 1967
from Mr. W. J. 7ahradka, Chief Clerk to the
Superintendent at St. Paul, Minnesota Carrier's Exhibit "F"



OPINION OF BOARD: The claim alleges a violation of the Agreement because the Carrier did not permit the Claimant to fill Car Distributor Position No. 10050 when the regular occupant of that position was on vacation.


The Carrier contends that Claimant was not used on the Car Distributor position because of his lack of qualification for the position.


Article 12 (b) of the Vacation Agreement provides that absences from duty for vacation purposes will not constitute "vacancies" under any agreement. Furthermore, numerous awards of this Division have established the principle that the determination as to whether an employe has sufficient fitness and ability to fill a position is a prerogative of management, and that once the fitness and ability of an employe have been found by the Carrier to be lacking, the burden rests upon the Claimant to overcome that decision by substantial and competent proof. See Awards 5417, 6829, 11231, 12394, 14040, among others. The Petitioner has not met the burden of proof required of it. The claim will, therefore, be denied.


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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













Dated at Chicago, Illinois, this 15th day of May 1969.

Central Publishing Co., Indianapolis, Ind. 46206 Printed in U.S.A.

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