(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Missouri Pacific Railroad Company

1. Carrier violated Rules 7, 16 and related rules of the Clerks' Agreement when it arbitrarily and capriciously refused to assign Mrs. Jo Ann Eiben to the position of Typist - Dictaphone Operator No. 501, in lieu of junior employe, in the office of General Freight Claim Agent, Palestine, Texas (Carrier's File 280-752).

 2. Carrier shall now be required to compensate Mrs. Eiben eight hours' pay at the rate applicable to the position of Typist-Dictaphone Operator No. 501, beginning Wednesday, January 24, 1973, and continuing each subsequent work day, Monday through Friday, in addition to any other compensation earned or received, until the violation is corrected by assigning Mrs. Eiben to the aforementioned position.

 OPINION OF BOARD: This Board has consistently held that it is the Car
 rier's prerogative to determine the fitness and ability
 of its employes for positions and that the Carrier is not obligated to
 give an employee a trial on a position when it is obvious that he/she is
 lacking in the necessary qualifications.

 A solution to the problem raised by the parties was adequately dealt with by Emergency Board 186 when it addressed itself to the need of developing a retraining program: "Since it is always more costly, personally, socially and econom active affirmative job stabilization and retraining policy committee should meet regularly with specific action objectives." Such a program would enable employees to develop necessary qualifications.



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






                        By Order of Third Division


ATTEST. i

      .e !~ lo~'~

        Executive Secretary


Dated at Chicago, Illinois, this 31st day of July 1975.
                DISSENT of LABOR rmVSE'R

          IN AWARDS 20787 and 20788 (Dockets CLr20729


              and CL-20768 - Referee Quinn)


It is inconceivable that the majority herein would revert to language of an El^.ergency Eoard established under Section 10 of the Railway Labor Act, as amended, to deny a claim of an errploye(s) submitted to the Adjustment Board under Section 3 of the Railway Labor Act, as amended.

 The claimants) herein did set forth a full statement of the facts and all suppcrting data bearing upon the dispute(s). Such facts apparently have been completely ignored by the majority; since in lieu of rend.--:ynS a decision based thereon, a portion of an Emergency Board report is quoted in defense of the denial awards. It is to be noted that the Eirnergency Board report is a recomunendation which concerns a particular dispute and that dispute on_y--a dispute which was never i:entioned or raised during the handlir_; by the parties; which to this date has not resulted in an Agreement; and which, moreover, deals with job stabilizzation and retraining and has no bearing on the dispute(s) here. Further, it is evident that the rigits of the claimant s) under an A_-:reement whic Rules 4 and 7, which entitle the emroloye(s) to promotion and 30 days in which to qualify), have been denied.

 These Awards are in palpable error, and the majority have evaded the responsibility of this Board to apply the clear provisions of the Agreement. In view thereof, I dissent.

                            Gerald Toppen

                            Labor Member


August 28, 1975

 t
                DISSENT OF LABOR N'E=

          IN AWARDS 20787 and 20788 (Dockets CL-20729


              and CL-20768 - Referee Quinn)


It is inconceivable that the majority herein would revert to language of an Emergency Board established under Section 10 of the Railway Labor Act, as amended, to deny a claim of an errploye(s) submitted to the adjustment Board under Section 3 of the Railway Labor Act, as amended.

 The clairra_nt(s) herein did set forth a full statement of the facts and all ^upportir:g data bearing upon the dispute(s). Such facts apparently have been co=letely ignored by the rraj ority; since in lieu of rendering a decision based thereon, a portion of an Emergency :card report is quoted in defense of the denial awards. It is to be noted that the EmerCency Board report is a recommendation which concerns a particular dispute and rht dispute only--a dispute which was never 7entioned or raised durirF the handling by the parties; which to this date has not resulted in an Agreei^ent; and which, moreover, deals with job stabilization and retrairdng and has no bearing on the disputes) here. Further, it is evident that the rights of the claimants) under an .A.,~reernent whic Rules 4 and 'T, ,..nich entitle the employe(s) to promotion and 30 days in which to qualify), have been denied.

 These Awards are in palpable error, and the majority have evaded the responsibility of this Board to apply the clear provisions of the Agreement. In view thereof, I dissent.

                          \ Gerald ~Toppen

                          Labor Member


August 28, 1975