(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

1. Carrier violated and continues to violate the rules of the Clerks' Agreement when it disqualified Mr. Roy T. Briggs from the position of Chief Clerk, Machine Room, Everett, Washington.

 2. Carrier shall now be required to restore Mr. Roy T. Briggs to the position of Chief Clerk in the Machine Room, Everett, Washington, and reimburse him for any and all lose of compensation incurred from date of his disqualification, November 30, 1973.

 3. Such compensation shall be adjusted by 87. interest per annum, compounded daily.

 OPINION OF BOARD: On October 30, 1973, the Claimant was placed on the posi
 tion of chief Clerk, Machine Room, Everett, Washington, by
 virtue of his statue as the senior bidder on the position. On November 30,
 1973, his immediate supervisor, Assistant Terminal Agent Barr, gave him a let
 ter which disqualified him from the position of Chief Clerk at the close of
 that day's business. Following a hearing, held pursuant to the Claimant's re- .
 quest under Rule 58 (unjust treatment), the Superintendent rendered a decision
 affirming the disqualification.

 The parties' Submissions on the Employes' appeal of the Superintendent's decision join issue on the raise procedural objections. The procedural objections are noted and treated as follows:

 1. The Carrier asserts that the claim is barred from Board consideration because the Employes failed The appeals procedure asserted by the Carrier to be applicable to this case is treated in Carrier letters to the Employes' representative dated May 5, 1970 and January 2, 1974. The May 5 letter refers to "claims resulting from disciplinary action." The Jan as follows:







The above quoted procedure was not followed in this case, so the question is whether such procedure is applicable to a disqualification case. The Carrier's contention is that Rule 58 (unjust treatment), and since Rule 58 affords the same right of investigation and appeal as the appeal of a decision resulting from a Rule 58 hearing is governed by the appeal procedures established for discipline cases under Rule 56. Examination of this contention rev after ixiitial decision to the next higher officer and thereafter "in the regular order of successio and therefore omits the steps of the "regular order of succession." The omitted part of the procedure, which is the part in dispute here, is established by conference and correspondence of the parties and thus the Carrier's correspondence on the disputed procedure is pertinent. Such correspondence, in speaking solely of discipline cases and in making no reference at all to unjust treatment cases, fails to reflect any intent whatever that unjust treatment cases were intend correspondence reflects that discipline cases were the only cases contemplated by the subject procedures. Moreover, absent a clear contra statement of intent in the Carrier's corr 56 does not automatically place an unjust treatment case under appeals procedures which refer only to discipline cases. Such a result is strongly negated by the fact that the substantive differences between the two kinds of cases are Significant and self-eviden the tern "discipline" does not render it synonymous with the term "unjust treatment." In these circu of the cross-reference from Rule 58 to Rule 56 cannot be accepted, particularly since, as previously noted, the disputed procedures have been established by conference and correspondence between the parties and not by the Rules themselves.

 2. The Employes object to the consideration of the Section 6 Notices and arguments thereon set out in the Carrier's Submission on the ground that such notices and arguments were not handled on the property. This objection is supported by the record and it is therefore sustained.

 3. The Employee also assert that a fair and impartial hearing was denied the Claimant, because (a) the letter of disqualification failed to include the cause therefor thus he should have been but was not allowed to offer his case in chronological order.

 In considering foregoing (a) it is noted that, although Rule 12 (c) required the Carrier to provide a written statement of the cause for a disqualification action, the of the Carrier's reasons for a disqualification action so that he may have adequate information on which to determine his response thereto. Where the written statement of the cause has not been p


objection thereto is before or at the hearing so that the Carrier has timely opportunity to provide the statement. However, the record does not reflect that timely objection was made before or at the hearing and therefore, under numerous prior authorities, the objection cannot be considered an appeal. As regards objection (b), even though the hearing was held at the Claimant's request, the Carrier had t to justify and explain its disqualification action of November 30, 1973; there was thus no impropriety in the order of the evidence. Additionally, the Claimant's defensive and aff from the hearing officer and thus the record does not support this objection.

 The merits of this dispute hinge on whether the Carrier's disqualification action violated Bile




The Employes concede that an employs may be disqualified under the above rile for lack of fitness and ability during a thirty working day period, but they contend that the Carrier violated the underlined rule provision which states that an employe will be "given, reasonable opportunity to qualify during such period." The specifics underlying this basic contention are that: (a) the Claimant had the fitness and ability required by the duties of the position; (b) the Claimant was not given proper cooperation, assistance and guidance in a friendly atmosphere during the relevant period and was not given a proper work place or properly equipped with a phone, desk, etc.; and (c) the Claimant was discriminated against by, and made the victim of a set-up by his immediate supervisor in regard to the disqualification.

 The bulletin advertising the Chief Clerk position contained a description of duties which referr to supervise data reporting." The term Compass (hereafter Compass or Compass procedures), which embraces the SPINS and ISO part of the system, is the acronym for "Complete Operating Movement Processing and Service System." The Compass procedures integrated into one uniform system many different functions such as the report of a car's location in a yard by track. Compass requires an employe to have knowledge of up to as many as 100 procedures and upon its installation in the Carrier's yard offices, the employes potentially involved with the system attended mandatory the system.


At the hearing the supervisor who disqualified the Claimant, Mr. C. A. Barr, Assistant Terminal Agent, testified that he informed the Claimant on October 29, 1973 th


Mr. Barr further stated that he gave written instructions to the Claimant in four instances, on October 30, November 1, 6, and 19, and that, although only a few Compass procedures were covered by the instructions, the Claimant's errors and inadequate implementation of the instructions evidenced his lack of knowledge about Compass as well as his inability to function as supervisor over clerks working with Compass. These instructions, containing thereon Mr. Barr's contemporaneous handwritten notes of the errors, were entered as Carrier exhibits in the hear
Seven members of the clerical force who worked with the Compass procedures testified in the Claimant's behalf. Their testimony indicated that they felt the Claimant made good progress in the time he was allowed to remain on the position, that the Claimant received no meaningful help from supervision, that no one in the Machine Room could have performed the written instructions issued by Mr. Barr, that the Claimant was discriminated against because the present occupant of the position is receiving help of a kind not received by the Claimant, and that he did not have a proper work space and equipment.

 The chief points in the Claimant's testimony about the disqualification are reflected in the followi testimony at the hearing:









"Q. And to your knowledge, there is no, is there any other ...













A. At the present time, no.

A. Not at this time, no."
















The foregoing, and the record as a whole, makes it clear that a basic knowledge and understanding of the Compass procedures and how to use them was a sine aua non for one to be qualified for the Chief Clerk position. About two years prior to this incident the Claimant had taken a two week indoctrination course in th use the opportunities afforded by his seniority to bid to positions involving the Compass procedures so as to learn more about such procedures. In this regard he stated that:

When asked whether he considered himself qualified to perform the duties of the Chief Clerk position, itself, the Claimant stated:

The Claimant thus admitted that he had not only followed his better judgment in avoiding the lesser clerical positions which involved the use of the Compass procedures, but also that he was not qualified for the Chi·f Clerk position which involved both the use of the procedures and the supervision of subordinate clerks using the pr the Claimant failed to demonstrate that he had the fitness and ability to fill the Chief. Clerk position at the time he was disqualified therefrom. It is equally clear that the Claimant's affirmative claims about his fitness and ability were limited to the contention that he had the capability of qualifying


for the position if given adequate instructions and opportunity to learn the Compass procedures. However, this contention does not bring the Claimant within the language of opportunity. Instead, the Rule requires the Carrier to respect the rights of a senior bidder who is qualified, subject to the Carrier's right to take disqualifying action if the the Carrier to exercise this right before the senior bidder has occupied the position for 30 working days, precludes the Carrier from taking any disqualifying action. The period senior bidder; it is sa plainly stated in the rule, for the employe to be given a-"reasonable opportunity to qualify."

 In view of the Claimant's admissions as to his lack of knowledge of the Compass procedures, there is no basis for finding that he was not given a reasonable opportunity to qualify.

 The arguments concerning inadequate help of the Claimant and similar matters do not alter this conclusion. The hearing record portrays Mr. Barr as perhaps a stern supervisor, but there is no indication that he was hostile in his dealings with the Claimant or committed say act to impede the Claimant's progress on the position. The Carrier's failure to provide the Claimant witn more adequate work space and equipment places the Carrier in a questionable light, but this alone does not bear materially on the Claimant's lack of knowledge of the Compass pr victim of discrimination or a set-up. And although the testimony of the seven clerks who testified for the Claimant established that the Claimant is wellliked and popular among t facts of the case is greatly outweighed by the probative value of Mr. Barr's testimony and the admissions made by the Claimant.

 In view of the foregoing, it is concluded that the Claimant did not demonstrate that he possesses the fitness and ability for the position of Chief Clerk and that Carrier afforded him a reasonable opportunity to qualify for the position as Required by Rule 12. Accordingly, there was no Agreement violation and the claim must be denied.



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






        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 16th day of July 1976.