NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-20413
(Brotherhood of Railway, Airline and Steamship
( Clerks, Freight Handlers, Express and
( Station Employes
PARTIES TO DISPUTE:
(Reading Company
( Richardson Dilworth and Andrew L. Lewis, Jr.,
Trustees
STATEMENT
OF
CLALM: Claim of the System Committee of the Brotherhood
((GL-7398) that:
(a) The Carrier violated the Agreement when it refused to
agree on the filling of the Position of Account Clerk covered by Bulletin No. 4060 in the Auditor of
11, 1973, arbitrarily assigned a junior employee to the position..
(b) Joan Powers, the senior applicant, be assigned to the
position covered by Bulletin No. 4060, and she and all other employes
adversely affected be compensated for all wage losses retroactive to
June 11, 1973.
OPINION
OF
BOARD: On January 3, 1973, the position of Accounts Clerk,
position No. 1, Negotiated List #3, in the Auditor
of Disbursements Office, Seniority District No. 4, was bulletined. There
were fifteen applicants for the position. The Claimant was the senior
applicant with a District No. 4 seniority date of January 2, 1943. The
next applicant in seniority order was
F.
Wood; however, she was awarded
another position for which she applied and she accepted same. The next
applicant in seniority order was Eleanor Reider, who had a District No.
4 seniority date of August 28, 1944. The bulletin in question (#4060)
expired on January 5, 1973, and the position was awarded to Eleanor
Reider on January 11, 1973. The Clerks' Organization contends that the
appointment was in violation of the current agreement.
The position to be filled was designated as an excepted position. The applicable provision of th
"The employes and positions listed on Negotiated
List No. 3 shall be subject to the rules of this agreement, except that vacancies on such positions,
Management and Division Chairman or their representatives."
Award Number 20241 Page 2
Docket Number CL-20413
The employes contend that Reider was not agreed upon and
that Claimant had sufficient fitness and ability, and being senior
to Raider should have been appointed to the position.
The major portion of the duties of the position, approximately 70% according to the Carrier, cov
require a knowledge of railroad expense accounts such as: 1) miscellaneous accrual and reversal entr
detail; 3) consolidated entry and related details; and 4) handling
of utility bills. Approximately 20% of the remaining duties consist
of handling undelivered pay checks and related duties covering stop
orders on paychecks and vouchers, processing wage assignments and maintaining associated records. Th
the above referred to functions of the assignment should at least have
had some exposure to the Auditor of Disbursements accounting procedures
and should have had some experience on positions closely related or an
integral part of their accounting system and some knowledge or experience in the handling of the dut
The record shows that Claimant never worked in the Auditor of
Disbursements Department, and it is the Carrier's contention that Claimant lacked the ability and fi
Organization, on the other hand, states that "the Claimant has sufficient fitness and ability to per
Position; and the Carrier has never disputed this fact." To this, the
Carrier replies that the Organization and the Claimant "never presented
any facts that would indicate that she possessed even the barest of
qualifications needed to perform at least the slightest phase of the
assignment" and have not met "the burden of proof". The Carrier points
out that the Claimant's service record was reviewed with the Organization and that it discloses that
and that her training and courses taken were limited to the operation
of business machines and that she had no training in accounting skills.
On our review of the record, we find that the management, in exercising
its initial responsibility for determining the qualifications for the
position in question, was not arbitrary or unreasonable, and the management's decision that Claimant
not opposed by evidence in behalf of Claimant which would establish a
reasonable probability that she would be able to perform all the duties
of the position within a reasonable time. See Awards Nos. 19762
(Blackwell),11768 (Engelstein),10424 (Dolnick), 5348 (Robertson), 8197
(Wolff).
Award Number 20241 Page 3
Docket Number CL-20413
But even assuming that Claimant had sufficient ability and
fitness to fill the position as the employes contend, we are of the
opinion that an affirmative award cannot be made. In Award No. 2491
(Carter), involving a similar claim and an agreement provision reading "Rules of Agreement of .March
except Rule 42, Bulletin. Vacancies will not be bulletined, but will
be filled after agreement between the head of department and the representatives.", the Board declar
"The position in question was an appointive one
to be made after agreement by the head of the department and the representatives of the employes. Th
in direct conflict with and supersedes the seniority
provisions of the agreement. It does not appear that
a failure to agree upon an appointee was contemplated
as no procedure for filling the position was provide
when such a situation arose. We are convinced therefore that no basis for claim exists unless an emp
agreed upon was denied the position or unless prejudice,
favoritism or bad faith is shown.
"Under this interpretation of the rule, the question of sufficient fitness and ability and the incid
questions pertaining to seniority of employes not appointed
is pertinent only in determining whether prejudice, favoritism or bad faith was present. Conferences
an attempt to agree upon an employe for the position without success. It appears to us that these co
instigated and participated in by the carrier in good faith
and without such prejudice or favoritism as would discredit
the action taken.
"It must be borne in mind that the carrier is primarily
charged with the efficient and safe operation of its railroad. In its managerial capacity, it is cha
selection of competent employes. Except where it has limited
itself by contract, the right of selection is wholly within
the discretion of the management. Effective management cannot tolerate a situation where a failure t
we have here, could indefinitely hinder or delay the work
assizned to important positions. Certainly it is not the
prvrince of this Board to fill such positions when the parties
fail to agree. Such a procedure could result in tremendous
harm. It is just as well settled that the employes do not
have the right ex parte to dictate who shall occupy the position. A rule of necessity requires that
have the right to fill the position under such circumstances
Award Number 20241 Page 4
Docket Number CL-20413
"and unless it appears that the appointment was the
result of prejudice, favoritism or bad faith, we
cannot say that the :ontract has been violated.
"It may be as ,e have indicated that the contract
did not contemplate a situation arising such as we have
here and for that reason provisions governing such a
situation were not included. But we cannot supply that
which the parties have not put in the agreement. We
can only interpret the contract as it is and treat that
as reserved to the carrier which is not granted to the
employes by the agreement."
We have carefully reviewed the record, in the light of Award
No. 2491, to determine whether prejudice, favoritism, or bad faith was
shown in the action taken by the Carrier in the instant case. The
record shows that the position in question was not filled by the Carrier
until six days after the bulletin had expired, and that during this time
there were at least five discussions between the Management and the representatives of the employes.
discussions, the Organization's sole request was to have the senior applicant (Powers) awarded the p
Organization conveniently fails to make mention of the fact that during
the handling of this matter, i.e., prior to the awarding of the position, which involved dire
the General Chairman, that they were made well aware of the fact that
Carrier's first choice of all the applicants was Mr. Joseph A. Golosky.
He was, in Carrier's opinion, the most qualified of all the applicants
and the Organization was so apprised of our views and intentions. Needless to say that the Organizat
position in that, they would consider one and only one applicant for
the assignment, and that being the claimant based solely upon her
seniority." It appears clear to us that the conferences were instigated and participated in by the C
prejudice or favoritism as would discredit the action taken.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
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;
.I
Award Number 20241 Page 5
Docket Number CL-20413
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST;
Executive Secretary
Dated at Chicago, Illinois, this 17th day of May 1974.