NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-21682
George S. Roukis, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(Southern Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood,
GL-8143, that:
(a) Carrier violated the Agreement at Memphis, Tennessee,
when it refused to assign Mr. Sam R. Powell to the position of General
Utility Clerk beginning August 23, 1974 on the ground that his merit,
capacity and qualifications were not sufficient. A junior employee
being assigned.
(b) Carrier shall be required to compensate Mr. Sam R. Powell
the difference between his rate of pay as Yard Clerk and that of General
Utility Clerk beginning August 23, 1974, and continuing until he is
assigned to the position of General Utility Clerk.
OPINION OF BOARD: Claimant argues that he should have been assigned
to the bulletined position of General Utility Clerk
rather than the junior employe whom the Carrier considered more qualified.
The record shows that claimant's seniority was approximately two and one
half months' greater than the other employe.
Recognizing the critical importance and necessity of seniority
in matters of promotion, transfer, layoff and assignments, etc., the
Board carefully examined pertinent agreement rules to ascertain whether
or not Carrier complied with the terms and requirements specified therein.
Rule B-7(a) which sets forth the procedures for filling vacant
positions under seniority states in part that:
"Except as otherwise provided in this agreement, vacancies
covered by this agreement will be filled in accordance
with principles defined in Rule B-6 in the following
manner, except that merit, capacity and qualifications
being sufficient, seniority shall govern."
Award Number 21954 Page 2
Docket Number CL-21682
Rule B-6 requires that promotions which are not filled by
seniority shall be filled as follows:
"Qualification, merit and capacity being relatively
equal, preference shall be given employees in the
service, who have made application, in order of their
service age."
Moreover, Note No. 1 appended to Rule B-7(a) prescribes the.
definitional application of the word."sufficient":
"The word 'sufficient' as used above is intended to
establish the right of the senior qualified employees
to be assigned to new positions or vacancies covered
by Section (a) of this rule over junior qualified
employees."
This Board is certainly mindful of the semantical interpretative
relationship between the word "sufficient" delineated in Rule B-7(a),
further qualified by Note No. 1 (supra), and the phrase "being
relatively equal" in Rule B-6, and of course, could devote inordinate
hours attempting to balance judiciously competing nuancial constructions.
The final evaluative decision regarding selection pursuant to these
criteria vests, however, with Carrier, subject to the Rule C-2 grievance
appeal process. This rule is particularly invoked when an employe is
adjudged not to have relatively equal or sufficient qualifications,
merit and capacity for a position on which he has submitted a bid and
a junior employe has instead been selected. The burden of proof is
establishing appropriate credentials thus rests with the aggrieved.
In the instant case, claimant requested and was granted a
hearing to determine his fitness for the General Utility Clerk's
position. It was found that he had worked 5 or 6 hours in this
employment responsibility on each of two days that the job was
bulletined as compared to the more extensive experience of the junior
employe. The latter, for instance, worked 69 days in this position
since 1969 as well as 509 days in various agency positions.
Perhaps innate potential would suffice to justify claimant's
presumptive qualifying bona fides, but we think that Rule C-2 requires
a greater substantive showing of sufficient or relatively equal ability
than mere assertions of experience, aptitude or putative capacity.
We have not found that claimant provided that degree of proof that
would convincingly substantiate his averred qualifications, nor have
we found that Carrier acted capriciously, arbitrarily or unreasonably
Award Number
21954
Page 3
Docket Number CL-21682
in this selection. There are numerous Third Division rulings on
point with this holding. See Awards 15784, 21055 and 21507.
FINDINGS: The Third Division of the Adjustment Board, after giving
the parties to this dispute due notice of hearing thereon,
and upon the whole record and all the evidence, finds and holds:
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
The Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 15th day of March
1978.