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NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21145
Joseph A. Sickles, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE: (
(Elgin, Joliet and Eastern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL7857) that:
(1) The Carrier violated the effective Clerks' Agreement when it
refused to permit Clerk Georgia Ward to exercise her displacement rights over
a junior employe, without just cause, and thereby deprived her of her seniority rights;
(2) The Carrier shall now be required to compensate Clerk Georgia
Ward for eight (8) hours' pay at the pro rata rate of Position No. GT. 357,
commencing with March 4, 1974 and continuing for each and every day thereafter,
five days per week, Monday through Friday, that she is denied her right to displace on Position No.
OPINION OF BOARD: On February 28, 1974 Claimant sought to exercise seniority
rights to displace a junior employe. On March 1, Carrier
rejected her notice because she had allegedly admitted no prior experience and
total unfamiliarity with the job content. As a result, Claimant was furloughed
- and not recalled to service until March 11, 1974.
Rule 7 specifies that the exercise of seniority in all instances is
subject to Rules 8 and 16.
"RULE 8
"PROMOTION, ASSIGNMENTS AND DISPLACEMENTS
"Employes covered by these rules shall be in line for
promotion. Promotion, assignments and displacements
shall be based on seniority, fitness and ability; fitness
and ability being sufficient, seniority shall prevail.
NOTE: The word 'sufficient' is intended to more clearly
establish the right of a senior employe to bid in a new
position or vacancy where two or more employes have adequate fitness and ability. An employe shall b
as having adequate fitness and ability when he has reasonable fitness and ability to perform the dut
Award Number 21067 Page 2
Docket Number CL-21145
have immediate fitness and ability resulting from
actual past experience in performing the work incident
to a particular position."
"RULE 16
"TIME IN
WHICH TO QUALIFY
(a) Employes making application for bulletined positions
or exercising displacement rights to positions held by
junior employes will be allowed sixty (60) work days in
which to qualify.
(b) When it is definitely determined, through hearing,
if requested in writing by the employe or his duly accredited representative, that the employe canno
he may be removed before the expiration of sixty (60)
work days, he shall retain all his seniority rights and
may bid on any bulletined position but may not displace
any regularly assigned employe, except that an employe
who fails to qualify on a temporary vacancy may immedately return to his regular position.
(c) Employes will be given full cooperation of department
heads and others in their efforts to qualify.
(d) Employee who are disqualified under provisions of
this rule on other than temporary vacancies shall thereafter be considered as furloughed and subject
In an April 3, 1974 denial of the claim, a Carrier official stated
that Claimant lacked prerequisite qualifications and:
"As you know, it has been our consistent position for years
that a person must be qualified to assume the full duties of
a position when bumping to that position. Conversely, we
recognize that when individuals bid to or are assigned to a
position we are obligated to train them in the duties of
that position."
The same position was reaffirmed in the further handling of the dispute on the property.
We have eliminated from consideration various speculations and assertions which are not based up
Award Number 21067 Page 3
Docket Number CL-21145
fied to perform the job as of the time she attempted to displace, and the
Carrier's stated distinction concerning its obligation.
Our review of the cited Awards fails to resolve the dispute. We
have considered the concepts expressed by the various Referees, but, in most
part, they were not confronted with the precise language here under review.
Initially we note that Rule 7 states that seniority in all instances
is subject to Rules 8 and 16.
Rule 8 states clearly that displacements shall be based on seniority,
fitness and ability. The clarifying note advises that an employe shall be considered as havin
the work incident to a particular position.
But regardless of the above, Rule 16(a) states, in mandatory terms,
that employes exercising displacement rights to positions held by junior employes will be allowed si
there are further provisions for removal before the expiration of the sixty
(60) day period, but that concept is not in issue here. Moreover, those provisions could be said to
The Board is not able to reconcile the Carrier's distinction between
"bids" and "bumping" (cited above) with the clear and mandatory rules of the
agreement. Claimant may not have been qualified to immediately assume the
position, but there is no showing that she could not have performed with proper
supervision and direction (Rule 8),given the "full cooperation of department
heads and others" (Rule 16(c)). In short, Carrier has not satisfied its burdening of proving that af
It may be that certain hardships may result to a Carrier under these
circumstances, but they are the result of the Carrier's contractual obligations,
arrived at at the bargaining table.
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;
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Docket Number CL-21145
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Executive Secretary
Dated at Chicago, Illinois, this 29th day of April 1976.
Serial No. 292
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
INTERPRETATION NO. 1 TO AWARD N0. 21067
DOCKET 170. CL-21145
NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
Freight Handlers, Express and Station Employes
NAME
OF CARRIER: Elgin, Joliet and Eastern Railway Company
Upon application of the representatives of the Employes involved
in the above Award, that this Division interpret the same in light of the
dispute between the parties as to the meaning and application, as provided
for in Section 3, First (m) of the Railway Labor Act, as approved June 2?,
1934, the following interpretation is made:
After a careful review of petition of the Organization for an
interpretation of the Award, and Carrier's response thereto, we find
that the Carrier's understanding of the intent of the Award is erroneous.
Carrier has compensated the Claimant, not the amount claimed,
but the amount it feels is due under the terms of the agreement, and it
calls our attention to Rule 53 in this regard.
Had the Carrier raised this issue on the property, we would have
afforded it upmost consideration, but, it is clear that Carrier say not
raise the issue at this late date. In short, a party may not seek a new
Award under the guise of an Interpretation. See Interpretation No. 1 to
Award No. 11676. See, also, Interpretation No. 1 to Award 11798.
Claimant is entitled to eight hours' pay at the pro rata rate of
Position GT-357, as per the original claim from March 4, 1974 to March 4,
1975.
Referee Joseph A. Sickles, who sat with the Division as a neutral
member when Award No. 21067 was adopted, also participated with the Division
in making this interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
~~i
Executive Secretary
Dated at Chicago, Illinois, this 18th day of August 1977.