(Freight Handlers, Express and Station Hnployes PARTIES TO DISPUTE:



(1) Carrier violated and continues to violate the Clerks' Rules Agreement at Deer Lodge, Montana when it arbitrarily disqualified Enploye W. P. Gaskell on File Clerk Position No. 74040.

 (2) Carrier further violated the Agreement when it refused to grant &uploye Gaskell an investigation as per his request in line with the provisions of Rule 22(f).

 (3) Carrier shall now be required to recognize Employe Gaskell's seniority and promotion rights by reinstating him to File Clerk Position No. 74040 and compensating him for an additional day's pay at the appropriate rate for each workday he is denied his contractual rights to that position.

 (4) Carrier shall be required to pay interest in the amount of seven and one-half (72) percent per annum on all wage lops sustained as set forth under Item 3 of the claim until the violation has been corrected.

 OPINION 0f BOARD: The record shows that claimant was awarded File Clerk
 Position No. 74040 at Deer Lodge, Montana, on February 9, 1978. On March 20, 1978, claimant was advised that effective 5:01 P.M., Thursday, March 23, 1978, he was disqualified as File Clerk, Position No. 74040, as prescribed by Rule 8 of the effective Agreement.

 On March 21, 1978, the claimant requested of the Division Manager a formal hearing, with company and union representatives. His request was denied on the basis that Rule 22(f) may be invoked only when the unjust treatment is for an offense, occurrence, or circumstance not covered by a rule of the clerk's agreement,, aoc~further, that his request was untimely, had been made to the wrong Carrier Officer and "it lacks specificity." Rule 22(f) of the applicable agreement provides:



We find that claimant's request was timely made under Rule 22(f); that it was made to the officer who disqualified him, and was specific enough to advise why it was requested - "due to being disqualified on Position No. 74070." At any rate, on March 30, 1978, the claimant made a similar request to the Assistant Division Manager-Administration, who also denied the request for an unjust treatment hearing. The dispute was subsequently handled by representatives of the Organization in the usual manner up to and including the highest officer of the Carrier designated to handle such disputes, and, failing to reach a settlement, the claim was appealed to this Division by the Organization.

 Numerous awards of this Division, involving the same parties, have been issued, holding that employes were entitled to unjust treatment hearings under Rule 22(f), or prior similar rules, when denied positions because of alleged lack of fitness and ability. See Awards $233, 9415, 9854 and 18922. Also, a nunber of awards involving the same parties, have been issued indicating that unjust treatment hearings were granted, in similar cases, before the disputes were appealed to this Division. See Awards 21615, 22442, 22443, 23050 and 23064.

        In its submission in the present case, the Carrier states:


        "...Therefore, for several years, the carrier granted unjust treatment investigations, when requested, for most if not all reasons.


        "However, for the past couple of years the Carrier has again applied its farmer position and frankly we commenoed and have continued to do so because i several years there have been some awards rendered by referees who have had the courage of their convictions


and cites a number of awards involving other parties.

 We do not consider the issue to be "referees who have the courage of their convictions." The issue is how the parties to the Agreement involved herein have placed themselves under their own agreement, not only by reason of Board awards, but by their practice. If the parties to an agreement are not satisfied with the Agreement rules as consistently interpreted by this Board, the remedy is through Section 6 of the Railway Labor Act, and not through repeated requests for further interpretations by this Board.

        In view of the awards issued in similar disputes involving the same


spartaieins,Pacritted(3h)erofeitnh,, eweclawiimllbysuastwaridninpgartcls aimant compeasatione tchlaa earned on the position less any amount earned in other employment (Rule 22-e). Part (4) of the claim is denied as no rule has been cited supporting it.
        Award Number 23283 Page 3

        -- Docket Number (Z-23327


        The Organization's representative on the Board has called attention

to the fact that Carrier's submission was not signed, as required by Circular
 No. 1 of the National Railroad Adjustment Board, and, in accordance with recent
 Award No. 23170,' the claim must be sustained for that reason alone.) As we
 have decided the dispute on its merits, it is not necessary to pass upon this
 point. Honevery.we do note that (rthe provisions of Circular No. 1 are man
 datory.l

        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 Miployes 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 sustained to the extent indicated in the Opinion.


                            NATIONAL RAILROAD ADJUSZ1ENT BOARD

                            By Order of Third Division


ATTEST:
        4--0L.

        Executive Secretary


Dated at Chicago, Illinois, this 15th day of May 1981.

DISSENT OF CARRIER MEMBERS

TO

AWARD 23283 (DOCKET CL-23327)

RETERE~W CARTER)


There were two separate arguments made by the Employees in this dispute which were identified as Item Nos. 1 and 2 of the claim submitted. Those contentions were:

      1) That the contract was violated when claimant was disqualified; and


      2) That the contract was also violatea when claimant was denied his request for a hearing.

Concerning the first contention, the Majority does not provide a single sentence of explanation to substantiate its conclusion that Claimant was improperly disqualified under the provision of Rule 8. This Board has many times been faced with such issues. The Hoard has consistently stated that the determination of qualifications is initially for the Carrier to make. In Award 22462 (Carter), it was stated as follows:

    "It is a well established principle of the Board that it is the Carrier's prerogative to determine the qualification of its employes, and when the Carrier de that an employe is not qualified for a position, the burden then shifts to the employe to prove that he or she is qualified."

On this property, some of the many Awards supporting this principle, given the Majority, were Awards 22443 (Sickles), 22980 (Franden), 23064 (Sickles), 23050 (Roukis), 21615 (Lieberman), 21412 (McBrearty), 16480 (Dorsey)) 17948 (Dorsey).
                                  DISSENT OF CARRIER MEWS

                        _ 2 _ To AWARD 23283


There is not even a hint in this case that the Carrier improperly assessed Claimant's qualification. In fact, the only evidence of record bearing upon Claimant's qualifications substantiates the Carrier's conclusion; and such evidence was never refuted nor rebutted on the property. Yet, Award 23283 sustains this facet of the Employees' claim.
 Much of the opinion in this Award deals with the prior record on this property concerning Rule 22(f) hearings. And the conclusion is reached that the Carrier violated the contract by not according the Claimant such a hearing. The appropriate remedy, therefore, would have been to provide the requested hearing. However, even though the Carrier did produce evidence to support its conclusion that Claimant was not qualified, the Majority provides recompense as if
        Award 8233 (Lynch), on which the Majority relies, stated:


" ....this Award holds Carrier violated Rule 22(g) only by failing to grant Claimant an investigation. We have not held that Carrier's disapproval of Claimant for Service was not justified ....There is no evidence before us that such action on Carrier's part was violative of the Agreement." Such a conclusion should have also been applied in this case.
 Finally, the Employees could have submitted evidence during the grievance procedure to rebut the Carrier's conclusion but did not do so. The claim that Claimant was denied a hearing under the provisions of Rule 22(f) does not eliminate the burden of proof required to support that portion of the claim that Claimant was, in fact, qualified for the position.
        -- DISSENT OF CARRIER :S

        - 3 - To AWARD 23283


        The conclusion reached concerning these matters in Award 23283

are predicated upon assumption and supposition, and not the factual record.

On this basis wg.dissent. Z/-,~


                          P. V. Varga


                              0'Connell


                          . Mason l


                          IN. Lie.


                            . w

                            d. f

Serial No. 309

 NATIONAL RAILROAD ADJUSTMENT BOARD

 THIRD DIVISION

 IbiTPRLTATION N0. 1 TO AWARD N0. 23283

 DOCKET NO. CL-23327

 NAME OF ORGANIZATION: Brotherhood of Railway, Airline and Steamship Clerks,
 Freight Handlers, Express and Station Employes

 NAME OF CARRIER: Chicago, Milwaukee. St. Paul and Pacific Railroad Company

 Upon application of the Carrier involved in the above Award that this Division interpret the same in the light of the dispute between the parties as to the meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act, as approved June 21, 1934, the following interpretation is made:

 It is well settled that the purpose of an interpretation is to explain the award as originally made and not to make a new Award.

 The Award upon which an interpretation is sought holds that the Carrier violated the agreement as interpreted in prior awards of the Division involving the same parties.

 In its request for interpretation the Carrier undertakes to review the correctness of the Award and to question the reasoning back of the Award. Such a review cannot be had on an application to interpret or clarify the meaning of an award. We have again reviewed Award No. 23283 and find that the reasoning is clearly set forth therein. Furthermore, there is no obligation that the Board, or the Referee who participated in the Award, give their reasons for an award. (See Air Line Pilots, Assn. v Del Casal, CA-5, 90 LC, 72464, Dkt. 80-1695). See also Interpretation No. 1 to Third Division Award 3563, Serial No. 70.

 It now develops that claimant in Award No. 23283 retired from Carrier's service in October, 1979, prior to the dispute having been submitted to this Board. Payment due claimant as sustained by Award No. 23283 would cease upon the date of retirement.

 Referee Paul C. Carter who sat with the Division as a neutral member when Award No. 23283 was adopted, also participated,with the Division in making this interpretation.

 NATIONAL RAILROAD ADJ'JSTfB'IiT __°OARD
 By Order of Third Division

 A=T: Acting H~cecutive Secretary
 National Railroad Adjustment Board

 BY

 5e: ^rie Brasch - Administrative A3oistant

 Dated a t Miicago, Illi:.oi.:, thin 28;,h day of April 19-P,>.