STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:
EMPLOYES' STATEMENT OF FACTS: There is an Agreement in effect between the parties, a copy of which is on file with this Board. Said Agreement is incorporated into this submission as though fully set out herein. That Agreement, effective August 1, 1951, was entered into by and between the former New York, Chicago and St. Louis Railroad Company (commonly known and referred to as the "Nickel Plate") and the claimant organization. Said Agreement has been revised from time to time since its effective date but not in respect to the rules involved in the instant dispute.
Effective October 16, 1964, the former New York, Chicago and St. Louis Railroad ("Nickel Plate") was merged into the facilties of the Norfolk & Western Railway Company, pursuant to authorization granted by the Interstate Commerce Commission in that agency's Finance Dockets 21510 et al. In connection therewith, on April 16, 1962, certain organizations, including the Organization here before the Board, entered into an agreement with Norfolk & Western with respect to the then pending merger proceedings. Section 1(c) of that Agreement provides as follows:
"(c) Norfolk & Western will take over and assume all contracts, schedules and agreements between Nickel Plate and the labor organizations signatory hereto concerning rates of pay, rules, working conditions and fringe benefits in effect at the time of consummation of the said merger, and will be bound by the terms and provisions thereof, subject to changes in accordance with the provisions of the Railway Labor Act, as amended, in the same
patcher's position at Frankfort, Indiana. In the opinion of the regular first-trick assistant chief train dispatcher, he was then considered qualified to perform the work of the position in question.
The subsequent handling of the claim on the Carrier's property is shown by the following letters, which are reproduced as Carrier's exhibits;
OPINION OF BOARD: Because of the illness of the incumbent, a one-day vacancy occurred on the position of first trick assistant chief dispatcher at Frankfort, Indiana. Carrier called another dispatcher instead of Claimant, who was the senior extra dispatcher, for the alleged reason that Claimant was not qualified to work the vacant position.
Thus, Claimant challenges Carrier's determination that lie was not qualified to fill the vacant position.
It is elementary that the determination of whether a person is qualified to fill a particular position rests with the Carrier. Unless the person aggrieved by such a decision of the Carrier can prove by a preponderance of the evidence that Carrier was unreasonable, arbitrary, capricious or discriminatory in making its determination, the latter's decision must stand.
The evidence in the instant case shows that Carrier had uniformly required persons filling assistant chief dispatcher positions to have previously posted on such position at least one day. The evidence further shows that Claimant bad not, prior to the date of the claim, posted on the position.
Consequently, we cannot find from the evidence that Carrier was unreasonable, arbitrary, capricious or discriminatory in concluding that Claimant was not qualified for the subject position. Therefore, Carrier's determination in this regard must be permitted to stand and the claim must be 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 Employed 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
Immaturity-The majority's reasoning is based upon complete lack of knowledge of the train dispatcher class of employes in the railroad industry.
Three `It's'-The quotation above proves, when checked with the Docket, that the majority did not read the Docket or are oblivious of the facts.