NATIONAL RAILROAD ADJUSTMENT HOARD
THIRD DIVISION Docket Number CL-21400
Irwin M. Lieberman, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood,
GL-7986, that:
1. Carrier violated the Clerks' Rules Agreement, in particular,
Rules 4, 6, 7, when it arbitrarily and capriciously refused to assign
Gary L. Gunnels to position-of Investigator-Senior No. 31, and/or position
of Investigator-Senior No. 496 (Carrier's file 280-804).
2. Carrier shall now be required to compensate Mr. Gunnels for
eight (8) hours' pay at the rate applicable to the position of InvestigatorSenior No. 31 and/or the
Thursday, June 27, 1974, and continuing each subsequent work day, Monday
through Friday thereafter, in addition to any other compensation earned or
received, until the violation is_corrected by assigning Mr. Gunnels to one
of the aforementioned positions.
3. Carrier shall be required to establish a seniority date of
June 27, 1974, for Mr. Gunnels in Seniority District No. 31.
OPINION OF BOARD: Claimant, with a seniority date of October 17, 1973,
was assigned to the Extra Board at Palestine, Texas.
From that date until the date of the incidents herein he had worked as an
extra or relief agent and operator (including agent at various "Star"
Agencies) throughout the District. There was no criticism with respect
to the quality of his work.
On June 20, 1974 Carrier issued two bulletins advertising the
positions of No. 31 Investigator-Senior and No. 496 Investigator-Senior, in
the General Freight Claim Office, District 31 at Palestine, Texas. The
major duties of both positions were identical and were spelled out in the
bulletins as follows:
"Major Duties: To be responsible for the investigation and
settlement with claimants and the distribution thereof between
carriers on various types and classes of freight loss and
damage claims. To perform such other similar or lower rated
duties as may be assigned, properly coming within the rate
of
pay."
Award Number 21327 Page 2
Docket Number CL-21400
The bidding was to be closed at the end of the work day on June 24th.
Claimant bid on both positions on June 23,
1974.
He was instructed by
the Assistant General Freight Claim Agent to appear at the Freight Claim
Office by 5:00 P.M. on June 25,
1974
to take a test, or be disqualified
for the positions in question. Claimant attempted to be relieved from his
duties in order to take the test but was not relieved by the responsible
Carrier official. Carrier issued bulletins on June 27,
1974
that no
qualified bids had been received and on the following day issued assignment notices indicating that
two vacancies. On July 1,
1974
in response to an inquiry by Petitioner,
Mr. Miller, the General Freight Claim Agent indicated that Claimant was
not assigned to the positions:
" ....by reason of the fact that he did not avail himself
of the opportunity to demonstrate his fitness and ability
by taking written test which was offered him."
It is noted that Claimant was offered the opportunity to take the test,
which he availed himself of, and did take the test on July 1,
1974.
He
was never given the results of the test. He requested an "unjust treatment"
investigation which took place on July 17th.
The most significant rules dealing with this dispute are as
follows:
"Rule 4
PROMOTION BASIS
(a) Employes covered by these rules shall be in line for
promotion. Promotion, assignments and displacements under
these rules shall be based on seniority, fitness and ability;
fitness and ability being sufficient, seniority shall prevail.
NOTE 1: The word 'Sufficient' is intended to more clearly
establish the prior rights of the senior of two or more
employes of the same seniority district having adequate
fitness and ability for the position or vacancy sought in
the exercise of seniority."
at
"Rule 6
VACANCIES AND NEW POSITIONS
(d) Employes filing applications for positions bulletined
on other districts or on other rosters will, if they possess
sufficient fitness and ability, be given preference over
non-employes."
Award Number 21327 Page
3
Docket Number CL-21400
. "Rule q
FAILURE TO QUALIFY
(b) Employes who have been awarded bulletined positions,
or employes whose exercise of seniority over junior employes has been approved, will be allowed 30 c
in which to qualify, except as .provided for in Section (d)
of this Rule.
(f) The provisions of this Rule
7
contemplate that no
employe will be permitted to disqualify himself. The
provisions of this rule do not apply when employes are
denied bulletined positions
or
refused the right to exercise
seniority over Junior employes. (See Section (b), Rule
4.)"
Carrier states that the dispute in essence turns on a very simple
question: whether Carrier's decision not to assign Claimant to either of
the two positions may be characterized as arbitrary and capricious. Carrier
argues that (1) Claimant did not have the knowledge, training, experience
or ability to perform the duties of the position; and (2) the rules do not
require the assignment of an unqualified employe to a position and permit
him to train while occupying that position.
There are a host of authorities cited by both parties to this
dispute. However, the case is
a
classic fitness and ability matter which
turns primarily on the facts of record. We concur with the position taken
by Carrier (and by this Hoard in many prior disputes) that:
"(1) The decision as to the fitness and ability of an
employe to fill a position is a function of the
Carrier.
(2) The decision of the Carrier will not be disturbed
by the Board unless there is a clear showing in the
record that the decision was arbitrary and capricious and/or a complete abuse of discretion.
(3).
Once the determination is made and then contested
by the employe or his representative, the burden of
proving that he possessed the fitness and ability,
and that the Carrier's decision was faulty for the
reasons mentioned in the second principle, rests
with the petitioner."
Award Number 21327 Page
4
Docket Number CL-214oo
it is our considered judgment, based on the entire record, that
in this case the decision of Carrier was arbitrary, and capricious and must
be reversed. Furtber, from the testimony of Petitioner at the investigatory
hearing, there is the presumption that Claimant was qualified for the position. These hypotheses mus
The manner in which this bid was handled was far from exemplary.
It seems quite strange to deny a position based on lack of an examination
when the employe was not released by Carrier to take the test. The test,
which was administered after the fact, was never reviewed, in terms of its
content or results during the handling on the property and therefore, based
on well established doctrine may not be considered in the resolution of
this dispute. Further, with respect to the test, there was never any
statement that it was uniformly required of applicants for this position
or that there had been any standards developed with respect to the scoring
of the instrument. In short, although Carrier is certainly entitled to
administer tests to ascertain skills or ability, in this case there was
absolutely no indication that the test was objective, appropriate or applied
in a non discriminatory fashion.
Petitioner demonstrated at the hearing, without rebuttal, that
Claimant had.the educational background, railroad experience and clerical
experience and responsibility to cope with the positions, particularly in
comparison with the two completely new employes who had no railroad experience whatever. Even though
and ability of Claimant, it is interesting to note that Carrier refused to
supply any information at the hearing, though specifically requested, concerning the qualifications
positions. Dealing with a critical area of "fitness and ability", Petitioner
questioned Mr. Miller at the hearing with respect to his investigation of
those qualities and attributes of Claimant. Miller indicated that he had
not even checked with Claimant's supervisor as to his work record or ability
in the position he had held with Carrier for
8J
months. In short, there
was no evidence .for his conclusion, other than a judgment by Mr. Miller
that Claimant's background was in some unspecified way deficient.
Carrier argues that Claimant admitted at the hearing that he
would require time on the job in order to perform satisfactorily and that
admission is sufficient to disqualify him; further that Claimant admitted
he was unqualified. The record does not bear out Carrier's contention.
Claimant specifically on several occasions testified that he had the fitness
and ability to perform the position, but needed the thirty day qualification
period to perform adequately. It is noted that Mr. Miller testified as
follows:
"Q. Mr. Miller, has each and every employee that has been
assigned to a Claim Investigator position in your office
been fully qualified to set down and handle claims on
their first day they were on the position.
Award Number 21.327 Page
5
Docket Number CL-21400
"A. In my judgment each investigator that we have assigned
has had the prerequisite fitness and ability to perform
the duties of the position within the 30 days period
given sufficient supervision and instruction."
We see nothing inconsistent in Claimant's responses in the light of Mr.
Miller's testimony.
In summary, we find that: there were no specific qualifications
for the job in the bulletins (as distinct from those specified in Award
21246); on a prima facie basis Claimant had the requisite experience and
ability; there was
no
evidence whatever relating to Claimant's alleged
deficiencies for the position; there was nothing detracting from Claimant's
fitness developed by his testimony. at the investigation; and we have absolutely no information abou
the two vacancies. The test, as indicated heretofore, may not be considered
in the evaluation of Claimant's fitness and ability. As we said in Award
No. 20702, and it is equally applicable in this case:
" ....Carrier's stated reason for its decision not to promote
Claimant was but a bare assertion without adequate evidentiary
support ....Petitioner's past record created a presumption of
fitness and ability for the position and that presumption has
not been rebutted by Carrier."
The conclusion is inescapable: Carrier's actions in this matter must be
characterized as arbitrary and capricious.
With respect to the remedy requested by Petitioner, we do not
agree with the monetary aspect. Claimant was damaged by Carrier's actions
and must be made whole for that breach, bat more than that sum does not
seem appropriate in this case. Therefore, we shall award Claimant the
difference between his actual earnings and what he would have earned had
he been qualified to occupy the position of Claims-Investigator-Senior,
until such date as he is placed in one of the two positions.
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;
Award Number 21327 Page
6
Docket Number CL-21400
That this Division of the Adjustment Hoard has jurisdiction
over the dispute involved herein; and
That the Agreement was violated.
A W A 'R D
Claim sustained except that Paragraph 2 is modified as indicated
in the Opinion above.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
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Dated at Chicago, Illinois, this 30th day of November 1976.
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C 2 2 1970
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