NATIONAL
RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-22911
George S. Roukis, Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-8760)
that:
1) Carrier violated, and continues to violate, the Clerks' Rules
Agreement at Seattle, Washington commencing on July 11, 1977 when it failed
to assign Position No. 89740 to employs M. D. Jones.
2) Carrier shall be required to recognize Marvin D. Jones' seniority,
promotion and displacement rights, assign him to Position No. 89740 and compensate him for an additi
day he is denied his contractual rights to that position.
3) Carrier shall pay employe Jones interest at the rate of 7~% compounded annually on the anniversar
Item 2 above.
OPINION OF BOARD: This dispute is similar to the claim filed by Claimant
Don G. Olson for the Chief Revising Clerk's position No.
89740 bulletined on June 30, 1977 and awarded to a junior employee on July 11,
1977. The Claimant in this instance, Marvin D. Jones, a Grade B Revising
Clerk at the time this claim was initiated, contested Carrier's selection of
Ms. Linda Turner for this position and requested an unjust treatment hearing
pursuant to Rule 22 (F) to determine whether Carrier's decision was alternatively
proper or capricious. The aforesaid hearing was held on August 18, 1977 and
Carrier subsequently apprised Claimant by letter, dated August 23, 1977 that
his rejection was unbiased. Specifically the letter, which was written by the
hearing officer, stated in part that: "Testimony which was given at the
investigation does not substantiate your contention of unjust treatment,
therefore, it is my decision that your charge was and is without factual or
schedule rule support." This disposition was appealed.
In our review of the record, we agree with Carrier's position.
Claimant did not possess the varied experience and skills needed for this
job. It required significant Revising Clerk - Grade A position experience,
which necessitated the supervision and training of Grade A and Grade B Revising Clerks, work compete
- Award Number 23051
Docket Number CL-22911 page 2
the application of codes. Importantly it required the incument to rate tariffs,
which presupposed
experience, not interest. Admittedly, Claimant asserts that
he performed analogous duties, but their substantive quality was indicative of
potential not definable fitness. In fact, Carrier supervision found him unqualified to perform the <
Chief Revising
Clerk's functions. His experience
included being an operator, an extra load operator, a switching and interchange
clerk and assignments TOFC work. He testified that he had never been required
to go into rate tariff to move a commodity from one location to another,
although he noted that he was required to work from tariffs and furnish rate
information. He stated that he wanted to get into the regional accounting
department "to begin to learn rates", an important and critical function of
the Chief Revising Clerk. Clearly from
the record,
it becomes difficult for
this Board to conclude that he was sufficiently fit and qualified for this
position as per the intended meaning of role 7. At best, we find a "potential"
that is arguably debatable. In Third Division Award 10345,
which we
feel is
pertinent to our findings herein, we stated in pertinent part:
"It is difficult to conclude on the record that the
Carrier was unreasonable, partial, arbitrary or
capricious in determining, under all the circumstances, that Claimant was not sufficiently qualified
The Carrier is under no obligation to undergo the
hazard and expense of the qualifying period provided in Rule 25, unless the Senior has something
else to offer other than potentiality."
Applying this holding to the case before us we find that Claimant's qualifications
represent more potential than an unmistakable demonstration of sufficient fitness
and ability and Carrier's rejection of his position bid application was without
bias and consistent with its prerogatives.
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.
Award Number 23051
Docket Number CL-22911 Page 3
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:~i~I
Executive Secretary
Dated at Chicago, Illinois, this 14th day of November 1980.