NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-21339
Walter C. Wallace, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(Akron, Canton & Youngstown Railroad Company
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STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier used Trackman
Draper Williams and Assistant Section Foreman D. A. Lewis to fill a
vacation vacancy of Bridge and Building Foreman for the period beginning
August 6, 1973 extending through August 31, 1973.
(2) B&B Carpenter F. E. Newman shall be allowed the difference
between the B&B Foreman's pay and the pay of a B&B Carpenter for a number
of hours equal to that worked by Messrs. Williams and Lewis in performing
B&B Foreman's work from August 6, 1973 through August 31, 1973.
__._._OPINION OF BOARD: This dispute involves the interpretation and applica-
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- tion_of-the. agreement between the Akron Canton-and
Youngstown Railroad Company and the Brotherhood of Maintenance of Way
Employes. When Bridge and Building Foreman E. J. Cole was on vacation
during August, 1973 the carrier assigned Lewis and William of the Track
Department to fill the vacation vacancy. The claimant, F. E. Newman was
employed in the B.& B Department as a qualified carpenter with seniority
dating from August 10, 1970. It is his contention that carrier violated
the agreement using Lewis and Williams insofar as he was the senior
employe in the B & B Department. For its part carrier maintains Claimant
lacks merit and ability to be a foreman and supports its contention with
three affidavits from B & B Department employes. The claim progressed
through the appropriate levels on the property until submission here for
resolution.
At the outset we must consider Carrier's claim that the dates of
claimant's asserted vacation replacement time are incorrect. The
claimant maintains the period involved begins August 6, 1973 and ends
August 31, 1973. The carrier claims it did not begin until August 13, -
1973. Both sides submitted evidence in support of their claim and the
conflict is clear. Insofar as this Board has no way of resolving con
flicting statements or contentions and, based upon the state of this
record, we have no choice but to dismiss this claim for the period
August 6 through August 12, 1973 on this basis. See Award 18545. The
claim for the period August 13, 1973 through August 31, 1973 remains
for consideration.
Award Number 21399 Page 2
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Docket Number MW-21339
It is also clear that this Board will not consider issues
that were not raised in the handling of the question on the property.
The function of this Board is to consider questions raised within the
confines of the record established between the parties on the property
prior to submission at this level. A key issue here is the matter of
claimant's merit and ability to be promoted to foreman. As might be
expected carrier places great stress upon that aspect while claimant
emphasized the seniority requirements. A diligent search of the record
established on the property fails to disclose any evidence introduced
by carrier on this question other than the affidavits of the three
employes in the B & B Department who worked with claimant. In its submissions to this Board the
on-the-job appraisal of claimant made by his supervisors. But such
appraisals are not included in the record here and we have no way of
evaluating them or the credentials of the people who made them. Moreover, such supervisory appraisal
on the property. In the early stages of progress the carrier made
certain conclusionary and unsubstantiated statements that claimant had
not displayed or demonstrated merit or ability to be promoted to foreman..
Eventually when it was pressed for evidence in support of this assertion
the carrier, at the final level on the property made reference to the
three affidavits of the employes who worked with claimant and copies of
those affidavits were included in the record. No mention was made of
supervisory on-the-job appraisals of claimant. For its part the
Brotherhood asserted claimant was qualified and repeatedly made reference
to his qualifications as a B & B Carpenter over several years. As a
consequence we must conclude that the only evidence submitted by the
carrier in support of its contention that claimant lacks merit .and ability
to be a foreman are these three affidavits. If other evidence exists it
is not part of this record and it is outside the ambit of our consideration.
That such evidence may be part of a record developed in a companion case
does not alter our view. The practice is too well established to admit
of exceptions that this Board may consider only the evidence developed on
the property, nothing more. Even if we assumed that claimant waived any
objections to such consideration it would not help us. We cannot consider
what is not before us without engaging in an impermissible form of
speculation.
When we consider this issue substantively we note that carrier
makes a forthright claim that the carrier must be the judge of an employe's
ability and merit. In support of this it quotes from Third Division Award
4687 (Stone) as follows:
. 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
Award Number 21399 Page 3
Docket Number MW-21339
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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."
We are in full agreement with this statement and it is our
purpose now to fulfill this rule, not to oppose it. Therefore, on the
record before us, the question emerges, did the Carrier base its decision
on substantial evidence when it asserts claimant lacks merit and ability
to be a foreman? The answer to this question requires an analysis of the
three affidavits of the employes which is the evidence offered by carrier.
For our purposes we may rely on carrier's synopsis of their contents with
full confidence carrier extracted the most from them. The carrier's brief
states:
"Among the statements made by each of the three men
interviewed, these affidavits reveal that Mr. Newman
has threatened his fellow workers to the extent they
fear for their families safety; that Mr. Newman is
perceived as 'bad for morale'; that he on occasion
does a hasty job in order to relax in the time
remaining; that he stirs up resentment against the
company and its supervisors; that he once took off a
day for no other purpose than to go fishing; and that
the consensus is that more work is accomplished in his
absence than in his.presence."
In award No. 19432, this Board dealt with the weight to be
assigned the evaluation of supervisors' in a promotion situation and said:
"Most important though is that, standing alone, without
adequate evidentiary support and explanation, the carrier's
initial reason for non promotion is but a bare assertion
which does not meet the controlling criteria of reasonableness. There is no doubt that a supervisors
judgments in a promotion case should be given great weight.
But when such opinions are challenged, they must be supported with objective evidence or explanation
of specificity sufficient to permit the underlying basis
of the opinion to be tested by the rule of reasonableness.
And since the record before us does not disclose a reasonable basis for the carrier's decision we mu
that carrier abused its discretion. To hold otherwise in
the case at hand would be to condone an abridgement of the
employe's seniority rights which are protected by the terms
and spirit of the agreement."
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Docket Number MW-21339
Here we do not have the opinions of supervisors to evaluate
(they were excluded as discussed previously). Instead, we have the
opinions of three employes supervised. We are of the opinion that
accepting their statements at face-value would accord them greater
weight than is appropriate. None of these individuals had more than
two months seniority and it defies credibility to suggest they may be
in a position to judge whether an experienced and qualified B & B carpenter performs properly. N
the same test suggested for supervisors, the rule of reasonableness,
it does not help the carrier. A careful review of their statements
forces the conclusion, in accordance the above-quoted Award 19432, that
these statements are not supported by objective evidence or explanations
in a degree of specificity sufficient to permit the underlying basis of
their opinions to be tested by this rule.
These affidavits amount to a collection of corroborated complaints with the substantiability and
the gripes one might expect from new employes condemning a more senior,
albeit unpopular employe. They are haidly the basis, without more, for
depriving, him of rights assured under the agreement. In the single
instance where there is an attempt at specificity, we learn that claimant
once "took off a day for no other purpose than to go fishing." We also
learn the affiants overheard claimant say this to the vacationing foreman
Cole. We may observe that the foreman listening to such statement was in
a better position to evaluate whether or not it was serious or facetious.
Gleaning all that
is
possible from these affidavits we-reach
the conclusion that the carrier has not produced substantial evidence, in
this record, in support of its assertion that claimant lacks merit and
ability to be
a
foreman.
It follows from this that claimants basic stand that he is the
senior qualified B & B carpenter with several years experience must be
examined. Under the awards of this Board and the facts in this record
there is no question that he is the senior employe in his sub-department.
When claimant is tested against the two employes who were assigned to the
position by carrier, Trackmen William and Lewis, it is clear they are
senior in years of service in Maintenance of Way service and they present
credentials as foreman that are superior to claimants. But that is not
the test and that is not the basis for consideration. Article 12 (b) of
the National Vacation Agreement which is applicable here, provides:
"As employes exercising their vacation privileges will
be compensated under this agreement during their absence
on vacation, retaining their other rights as if they had
remained at work, such absences from duty will not constitute 'vacancies' in their positions under a
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Docket Number MW-21339
When the position of a vacationing employe is to be
filled and regular relief employe is not utilized,
effort will be made to observe the principle of
seniority."
This necessarily invokes Rule 3 of the Agreement which provides:
"Limits. Seniority rights of all employes are confined
to the sub-department in which employed, on the Chief
Engineers Seniority District as follows:
.. - 1. Bridge and Building Gangs
in
the Bridge --_
and Building Department.
2. Section Gangs, extra gang trackman and
track patrol foreman in the Track Department.
3. Extra Gang Foreman and Assistant Extra
Gang Foreman in the Track Department.
4. Welders & Helpers in the Bridge and Building or Track Department.
5. Misc. Equipment Maintainer and Helper in
the Track Department."
It follows that Claimant alone can claim seniority rights in the
Bridge and Building Department. Those holding seniority in the Track
Department can make no claim to entitlement to this work under the terms
of this Agreement. If there is any question in this regard, it may be
quickly resolved by reference to the awards of this Board which support
the proposition that a carrier may not turn over work of employes on one
seniority roster to employe of a different roster even where they are all
covered by the same agreement. See Award 6021 (and awards cited therein)
and Awards 4603 and 8034 as illustrations.
Having reached this conclusion there is no need to consider the
additional questions presented by the parties related to other provisions
of the agreement including such questions as claimants right to a trial
period. ,
All that remains is to give consideration to Award 20700
which received extensive treatment in the submissions to this Board. Were
that not the case we might be inclined to avoid reference to it entirely.
It is our conclusion that Award 20700 is not relevant here and as a consequence we are not presented
to in this record as a companion case insofar as it involves essentially
the same parties, the same agreement and the same property and arises !
out of the same happening. There the similarity ends because the records
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Award Number 21399 Page 6
Docket Number MW-21339
developed in each case are different. A singular prop of that award
is the fact that claimant admitted he could not supervise the work
involved. There is no similar admission in this ease. More important,
we have concluded in this case that carrier has not sustained its
claim that claimant lackee merit and ability to be considered for foreman.
On these grounds the issues involved axe different and Award 20700 presents questions and considerat
We conclude carrier violated the agreement insofar as it failed
to use claimant'to fill the vacancy of Bridge and Building Foreman for
the period
beginning August
13, 1973 extending through August 31, 1973
and claimant shall be compensated for the difference between such pay
and his regular rate for the time involved.
FINDINGS: The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds and holds:
i
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;
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 is sustained in part in accordance with the
Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: ~~/~
Executive Secretary
Dated at Chicago, Illinois, this 28th day of January 1977. i
fEB 2 3'977