· ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood

1. Carrier violated the rules of the Clerks' Agreement when it arbitrarily and capriciously refused to assign Mrs. Grace Ann Spencer to the position of No. 483 Key Punch Operator - Clerk, in the office of General Freight Claim Agent, Pa
2. Carrier shall now be required to compensate Mrs. Spencer eight hours' pay at the rate applicable to the position of No. 483 Key Punch Operator.- Clerk, beginning Monday, November 26, 1973, and continuing each subsequent work day other compensation earned or received, until the violation is corrected by assigning Mrs. Spencer to the aforementioned position. (Claim is to also include any subsequent wage increases).

 OPINION OF BOARD: This is a "fitness and ability" dispute. Claimant,
 with a seniority date of October 2, 1972 had been regur larly assigned to the Extra Board at Carrier's Palestine Yard Office in Palestine,-Texas. Among the positions she had been assigned to while on the Extra Board was that of Yard Clerk; one of the functions assigned to that position was keypunching. On November 12, 1973 Carrier bulletined the position of Key Punch Operator-Clerk in the General Freight Claim Office (a different seniority district) in Palestine, Texas. The bulletin outlined the duties of the positi



Claimant bid for the position; on November 15, 1973 she was given two key punch tests to indicate her ability to perform in the position. The record indicates that she took 6k minutes to punch 20 cards with 11 errors (alpha key punch) and 16 minutes to punch 200 cards with 13 errors (numerical key punch). Carrier al
error; the standard for numerical key punch requires the punching of 200 cards within a 15 minute period with only two errors. Carrier stated that


Claimant's rate of production for the two tests was approximately 6,000 strokes per hour. On November 16, '-973 Claimant was notified that she was not being assigned to the position since she did not satisfactorily pass the key punch machine operation test. Since Claimant had been the only Carrier employe who bid for the job, a new employe was hired to fill the position.
























                  Docket Number CL-21195


        (e) Employes will be given full cooperation of department heads and others in their efforts to qualify.


        (f) The,provisions of this Rule 7 contemplate that no employs will be permitted to disqualify himsel bulletined positions or refused the right to exercise seniority over junior employes. (See Section ( 4.)"


Both parties have submitted massive documents and voluminous authorities in support of their positions. Petitioner's arguments may be summarized briefly as follows: 1. Claimant was the senior and only bidder for the position and shoul cooperation in her efforts to qualify. Carrier may not deny an amp;oye his seniority rights to a position simply because such an employs does not have full knowledge of all the duties of the position. 2. Carrier acted arbitrarily and capriciously in not honoring Claimant's rights. Fitness and ability does not mean that the applicant is immeditely qualified to aVop, in and assume the duties of a position without guidance and assistance. 3. Many Board awards have supported the thesis that in promotions, preference should be given the qualified senior employe. 4. Carrier has not supported its position by producing the test taken by Claimant. 5. Claimant should have been given an opportunity to qualify and have been accorded cooperatiqA, as'specified in Rule 7. There is no requirement that an employs myst have fall knowledge of skills of all the duties of a given position before being assigned to such position. 6. Petitioner relies particularly op Awards. 20561; 13196, 18607, 19485 and 19660 all of which involve essentially the same issue and the same parties.

 Certain fundamentals must be examined in order to resolve this dispute. It is apparent that the terms "fitness and ability" and "qualified" are easily confused. It is our judgement that the employes must have a minimum of "fitness and abili may be required to have a minimum skill as a typist and then may need the thirty day period'in order to qualify for the particular work of a department; as a corollary, if the employe doesn't have the requisite skill as a typist, the thirty day period is of no avail.

 We'have dealt with issues closely related to that herein over many years. One aspect of the problem was wail stated in Award 16480:

        " ....In essence we have held in such cases that: (1) the current possession of fitness and ability requisite that must be met before seniority rights become dominant; and (2) this Board will not set aside Carrier's judgment of fitness and ability unless it is arbitrary or

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                  Docket :lumber CL-21195


        capricious or has been exercised in such a manner as to circumvent the Agreement. See, for example, Award No. 11941, 12461, 13331, 14011, 15164. Also, we have held that for us to set aside a Carrier's judgment the record must contain substantial evidence of probative value that the claimant employe possessed, at the time, sufficient fitness and ability to perform the duties of the position which he sought."


To further emphasize the basic position enunciated above, in Award 4687 we said;

          "This Division has uniformly held that determination as

,. to ability and fitness is exclusively a managerial function
          and will be sustained unless it appears that the decision

          of the Carrier was capricious or arbitrary; that the burden

          is on Claimant to establish that such was the case, and that

          if the decision of the Carrier is supported by substantial

          evidence it will not be disturbed."


Although the doctrine is well established, as indicated above, it remains for a determination to be made in each instance as to whether or not the Carrier has abused its discretion.

 In the instant case Carrier has asserted that by the Organization's own training program standards for key punch operators, a student is required to make 10,000 alpha/numerical strokes per hour as a standard for graduation. Carrier points to the approximate 6,000 strokes per hour as the test result for Claimant to justify its conclusion that she did not have the requisite ability for the job. In the penultimate correspondence on the property, the Organization stated:

        "We disagree with your position entirely that statement in our letter of July 5, 1975 acquiesced with the Carrier's position that the Claimant was not qualified for the position here involved but to the contrary, we had 'sufficient' qualifications for the position sought if she had been given full cooperation of the department heads as required by the Rules" Agreement. We disagree with your position that the Claimant was 'unqualified' and we have not requested that the claimant be assigned to a position and afforded an opportunity to qualify on the job, we have only requested that required by the Agreement, that the senior employe making application, who has sufficient fitness and ability, be assigned to the position and be given cooperation of officers and department heads in fulfilling the assignment."


The above statement provides no evidence of fitness and ability and in effect begs the question. We cannot quarrel with Petitioner's logic;
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                  Docket Number CL-21195


all that is lacking is probative evidence that Claimant indeed had the fitness and ability in question, or that Carrier's conclusion as to her skills, or lack of same, was arbitrary and capricious. We find no such evidence in the record of the handling on the property. It is true the Organization has cited Claimant's excellent background and work experience; unfortunately this background has only presumptive future relevance to the question of whether she had the required fitness and ability, at the time of the assignment..

 In evaluating the arguments raised by Petitioner, summarized above, we agree with the statement that Carrier may not deny an employe with seniority his rights to a posi full knowledge of all the duties of a position. However, that is not the issue. herein: ability to perform the key punch function of the position, not knowledge of all the duties, is the question. We also agree with the thesis that fitness and ability currently, may not be equated with assuming responsibilities without guidan lack of the original fitness and ability. We have no disagreement whatever with the proposition that preference in promotions should be given the qualified'senior eMloye;that Petitioner has argued that Carrier has not produced the test taken by Claimant, The. record indicate that the test in question was an accepted screening device for new employes for key punch positions and thus recognized the validity of the Instrument. It should also be noted that the question of the qualifications and ability of the new employe who was assigned to the position is not relevant to this dispute. There is no indication that the test given was unfair ox inappropriate and Claimant never disagreed with the results of the test on the pro, party - merely with the conclusions reached as a result of the test. See Awards 4371, 4918, 5025 and others.

 Perhaps the most important of Petitioner's arguments deals with the question of whether or not Claimant should have been given an opportunity to qualify for the position, for a thirty day period, as specified in Rule 7 supra.

 Let us examine some of the principal awards cited by Petitioner involving the same parties. Firs No. 341 is clearly distinguishable in that Carrier's official in that dispute did not question Claimant's fitness or ability but merely argued that the junior employe was better fitted to fill the position. In Award 13196 Carrier was found to have erre his fitness and ability to perform the duties of the position sought, significantly different than t successfully performed in an analogous position previously and Carrier failed to produce any evidence of value to support its position that Claimant did not possess sufficient qualifications for the job, clearly arbitrary actions by Carrier representatives as distinct from the instant dispute.
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                  Docket Number CL-21195


Award 19485 deals only with the lack of cooperation by Carrier officials during the thirty day qualification period, totally unrelated to this dispute. In Award 19660 we fou basis for disqualifying Claimant; in the instant dispute the test results were clearly an acceptable rationale, unless rebutted. An examination of Award 20561, without regard. to the thirty day qualification question, indicates that our decision w ability. We shall not discuss in depth the question of the relative burden of proof required in disp emphasize, as Indicated heretofore, that Claimant has the burden of establishing that she has the re the face of Carrier's assertions and evidence to the contrary.

 On the question of the qualification period provided in Rule 7 and emphasized by the Organization, we must refer to the changes made in the Agreement effective March 1, 1973. Rule 7 (f) was added to the previous provisions and its langu dispute: the qualification period does not apply "when employee are denied bulletined positions or refused the right to exercise seniority over junior employee". Thus, even if Petitioner is correct in its citations of earlier cases, arguendo, the changed language negates the precedents. Since Claimant herein was died the pos a qualification period. Her fitness and ability, as provided in Rule 6(d) was the first step towards the job; only in the event that she got the job was she entitled to the thirty day period.

 Under the rule applied in the long line of precedents such as Awards 4687 and 16480, which rule is hereby reaffirmed, this Division has uniformly held that determination as to ability and fitness is exclusively a managerial function and will be sustained unless it appears that the de" cision of the Carrier was capricious or arbitrary.

        For all the reasons indicated, 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 parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction aver the dispute involved herein; and

        That the Agreement was not violated.

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                Docket Number CL-21195


        Claim denied.


                          NATIONAL RAILROAD ADMSTMLNT BOARD


                              BOrder of Third Division y


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 28th day of September 1976.