NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22962
Martin F. Scheinman, Referee
(Brotherhood of Railway, Airline and
( Steamship Clerks, Freight Handlers,
( Express and Station Employes
PARTIES TO DISPUTE:
(The Baltimore and Ohio Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8784)
that:
(1) Carrier violated the Agreement between the Parties when, on
June 23, 1977, it denied Mr. P. M. Mason displacement rights that had accrued
to him under the Agreement Rules when he was not permitted to displace on
Agent position at St. Bernard, Ohio, and
(2) As a result of such Carrier action, Mr. Mason shall be compensated for an additional eight (
June 23, 1977, and continuing until he is permitted displacement rights on
the involved Agency position in Carrier's offices at St. Bernard, Ohio.
OPINION OF BOARD: Claimant, P. M. Mason, at the time of this dispute,
occupied the Agent position in Glendale, Ohio.
Claimant requested permission to exercise displacement rights onto a
position of Agent in Carrier's St. Bernard Agency at Cincinnati. The
St. Bernard position is a more demanding one; it is a more complex operation
than that at Glendale. Carrier denied Claimant's request due to an evalua
tion that Claimant did not possess sufficient fitness and ability for the
St. Bernard position.
The Organization contends that Carrier violated the Agreement
between the parties by denying Claimant displacement rights. The primary
rule cited by the Organization is Rule #30. It states: ,-
"Promotion, Assignments and Displacements.
Employees 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: The word 'sufficient' is intended to more cleafTy
establish the right of the senior employee to bid in a
Award Number 22892 Page 2
Docket Number CL-22962
"new position or vacancy, or exercise displacement rights,
where two or more employees have adequate fitness and
ability."
In construing rules such as Rule 30 herein involved, this Board
has held that this is not a strict seniority rule. Rather, seniority is
limited by the application of fitness and ability. In evaluating the
question of fitness and ability, we have consistently adhered to the
principle that Carrier has the exclusive prerogative to determine whether
an employe has the necessary fitness and ability for a position. This
determination once made will be sustained unless it can be established
that Carrier's decision was biased, arbitrary or capricious. See Awards
2209, 21328, 20878, 20361, 17489. The Organization has the burden of
establishing that Carrier's action was arbitrary or capricious.
While the Employes have introduced numerous contentions to support
its position that the Agreement was violated, the fact remains that there
is a complete failure to prove that Carrier's action, in not permitting
claimant to displace on a position more demanding than the one he had held
for some ten months, was arbitrary or capricious or an abuse of discretion.
Without such proof, 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 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 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 18th day of June 1980.