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



1) Carrier violated and continues to violate the Clerks' Rules Agreement at Chicago, Illinois commencing March 28, 1978 when it failed to assign Position No. 41440, claim Investigator, to employs Robert W. Royer.

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

 3) Carrier shall now be required to recognize Employs Royer's seniority rights, assign him to Position No. 42.440, and compensate him for as additional day's pay at the appropriate rata 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 (7z) percent per annum on all wage loss sustained as set forth under Item 3 of the claim until the violation has been corrected.

 OPINION OF BOARD: When the (terrier advertised, by Bulletin No. 16, Position
 No. 41440 (Claim Investigator) in March of 1978, the claimant complained to Carrier that the position was The Carrier replied to the Claimant that after as interview and careful consideration of all factors my opinion, you did not possess sufficient fitness and ability to handle it."

 The Employe requested an unfair and unjust treatment hearing under Rule 22(f):



'7-ie Carrier responded in the negative, stating that the cited rule may be invoked only when the alleged unjust treatment is for an offense, occurrence or circumstance not covered by a rule in the agreement; whereas the Carrier based the non-assignment to the position on the specific words of Rule 7 of the agreement:





The Employes contend that Rule 7 supports the Employe's contention that the position should have been awarded to him, and Rule 8 establishes a qualifying period of thirty days once an employs is assigned to a permanent vacancy. However, the Organization describes the "moat important fact in this dispute" as the denial to the Claimant of the right to disprove the allegations set forth by the (terrier. Accordingly, he should have been provided with an unjust treatment invest
In its submission of the case to the Board, the Carrier reiterates its position that Rule 22 (f) may only be invoked when the asserted unjust treatment is for an offense, occurrence or circumstance not covered by a rule of the agreement, and because of 7 of the agreement speaks to the particular issue, the Carrier was therefore not required to grant under Rule 22(f). In this regard, certain Awards concerning disputes between these parties were cited by the (terrier, but (terrier asserts that the authors of the Awards did not understand the language "other than covered by these rules."

 Be that as it may, this Board is inclined to find that the (terrier denied the Claimant the right to submit his contentions in an unjust treatment hearing. In this regard, we have considered the various Awards which have re6olved disputes between have concluded that in similar circumstances the Employes have been entitled to pursue their contentions, notwithstanding the phrase "other than covered by these rules." Regardless of whether the meaning of those words is "...anything but clear", as stated in Award 9415, it would seem that there comes a time when an adoption of awards between the parties establishes certain rights which may be altered only at the bargaining table and not in a proceeding such as this.
                      Award Number 23333 Page 3

                      Docket Dumber CL-23110


further, we shou)d note that our own predilections as to the potential outcome of a dispute may not control when a similar issue between the same parties has been resolved, unless the prior resolution is palpably erroneous We are not prepared to hake such a finding in this dispute, and accordingly, we find that the Carrier violated the Employe's rights when it refused to grant him an investigation under Rule 22(f). Accordingly, we will sustain Claim No. ?_.

 The Carrier raised objection to the propriety of Claim No. 4 while the matter was under review on the property. We find no basis for sustaining Claim No. 4.

        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 Ihtployes involved in this dispute are respectively Carrier and Flnployes 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 id A R D


Claim No. 2 and No- 3 are sustained, pursuant to the Opinion of Board.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
      'rbcecutive Secretary


Dated at Chicago, Illinois, this 19th day of June 1981.
                DISSE1Pf OF CARRIER ZS

                TO

                AWARD 23333 (D~'i' CL-e3110)

                Referee Sicl es


        It vas argued in this cane that the main point et issue vas:


    " ...does the Claimant who was alleged to lacK sufficient fitness end ability for assignment to Position No. 41449, Claim Investigator, have a right to an unjust treatment hearing under Rule 22(f)."

The daJority identifies this issue as "the most important fact" (p.2) in this case.
 The Majority In Award 23333 concluded that the Claimant had such n right. But the Majority then proceeds to dispose o! the matter as if the underlying issue, that of Claimant's qualifications for the position had been substantiated is the record. Nothing could be further from the evidence of record.
 At the bottom o! Page 2 of the Award, the majority speaks of rights and the continuance o! rights that have been confirmed by prior award determinations. While the Majority hen focused on the asserted right to a Rule 22(f) hearing, the Majority has totally ignored the underlying issue in this case wh right to hake the determination of an employee's qualifications. This has been confirmed in many awards of this Division involving the same parties: Awards 9947 (Rose); 17141 (Devise); 18802 (Bitter); 21119 (Lieberman); 21385 (McBrearty); 22442 (sickles); 23064 (Sickles).

        In Award 21119 this right vas stated:


    "Both parties agree that this Board has held consistently over the years that the current possession of fitness end ability is an indispensable requisite which must be met before seniority rights become effective for a promo further that Carrier's Judgment of fitness end ability will prevail unless 1t can be shown to have peen arbitrary and capricious. Ln addition, we must reiterate a long held principle that Career Is nit obligated to giv

                                      DISSUT OF CARRIER M]NEtt5 '1V

                        - 2 - AWARD 23333. DOCKET CL-23110


    "on a position when it has determined that he is lacking in fitness end ability (see Awards 123y4, 16480, 18025 end 115651) . "

In this case there was no attempt to rebut or challenge the
 Carrier's determination of qualification on the pW petty, In fact, there
 were five (5) other employees, senior to the Claimant, who ware not con
 sidered qualified.
 In deciding Claimant's qualification without demonstrating that the Carrier's determination was is error, this award has exceeded the jurisdiction of this Hoard by is tae record. The Majority then compounds its error oy awarding that Claimant be placed on the position as if he was contractually entitled to toe assignment. Such disposition exceeds our jurisdiction - Third Division Awards 10667 (Kramer); 12336 (Raglesteia); 13840 (vobura); 15521 (xenan). This is all the more glaring in the absence of evidence that Clsiment was qualified.
 if.. as the Majority has concludes, the Claimant had a right to a 22(f) hearing, then the appropriate remedy should have been as stated in Third Division Award 8233 (Lynch) between these same parties:

    " ....this Award holds Carrier violated Rule 22(g) only by failing to grant Claimant en 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 pert was violative of the Agree-


        .Recent Award 23066 (Sickles) concluded:


    "Accordingly, while we do not disturb the Company's basic

    contractual rights to disqualify in general terme$ none

    theless in this particular case we find that the Claimant

    should be given a reasonable opportunity to goal -on -We

    neat position to which his seniority would entitle him, and

    we direct the Carrier to grant him that opportunity."

    (Emphasis added)

                                  DISSENT OF CARRIER MEMBERS TO


                        - 3 - AWARD 23333, DOCKET CL-23110


To provide that an employee be given the contractual opportunity to demonstrate his qualification.,or as the Employees argued on the property, to give the "employe his day in court to disprove any anti all of the Carrier's allegations ...." should then have been the result provided by Award 23333. Instead, the Majority reached a conclusion that is predicated upon assumption, not evidence.

        We dissent.


                            . V. varga f/-


1
    f v


. MHSOa

      u

    onne

Serial No. 31.7-

 RATIONAL RAILROAD ADJU3TMT BOARD

 TEIRD DIVISION
IHTMOMTATIOR A0. 1 to AWARD AO. 23333

 DOCKET No. a.-23110

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

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

 Upon application of the furrier involved is the above Award that this Division interpret the same is the light of the dispute between the parties as to the morning and application, as provided for in Section 3s First (m) of the Railway Labor Act, as approved June 21, 193ks 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 mate a new Award.

 The original Award (upon which as interpretation is sought) held that the Carrier violated the agreement.

 In its request for an interpretation.. the carrier seeks to review the correctness of the Award and to question the basis for same. A request for an interpretation is not the vehicle to use to accomplish that result. We have again reviewed Award No. 23333 and find that the reasoning is clearly set forth therein.

 Referee Joseph A. Sickles who sat with the Division as a neutral member when Award No. 23333 was adopted, also participated with the Division in making this interpretation.

 NATIONAL RAILROAD ADJTJSMMT BOARD
 By Order of Third Division

 ATTEST: Acting Executive Secretary

        National Railroad Adjustment Board


moo ===P

 y
        semarie Breach - Aiaimistrative Assistant


Dated at Chicago. Illinois., this 27th day of January 1983.
 · ~ lr
 LABOR MEMBER'S ANSWER
 TO
 CARRIER MEMBERS' DISSENT
 rTO
 AWARD 23333, DOCKET CL-23110
 - (Referee Sickles)

          Most of what is contained in the Carrier Members'

          Dissent was considered and rejected by the Majority in

          `arriving at the decision to sustain claims numbered 2 and 3; however, it is the utmost in sophistry for the Dissenters, in view of this record, to write:


        "In this case there was no attempt to rebut or challenge the Carrier's determination of qualification on the property." when, in fact, Claimant was denied. each and every attempt to demonstrate that Carrier was wrong regarding his fitness and ability from the inception of this disputel

        The "adjustment" of this dispute exceeded no jurisdictional limits and, in view of the facts of record, was a most fitting conclusion and vindication of Claimant's rights which had been denied him since March 28, 1978.

        Since March 28, 1978 Claimant clearly was denied the right to work the position sought and denied the payment which working that position would have given him. There was ample justification to sustain claim number 4 and thus pay Claimant for the loss of the use of that money he should have had beginning March 28, 1978, however, the Refe

            The Award, as rendered, is quite correct and the Dissent

                i

        does nothing to detract from the soundness thereof.


                                  .T. ~~£ccFer, Jra~te'I~mber