Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 2'073
THIRD DIVISION Docket No. MS-26700
88-3-85-3-450
The Third Dirrisiin consisted of the regular members and in
addition Referee -dwin H. Benn when award was rendered.
(James C. Harvey
PARTIES TO DISPUTE:
(`taine Contral Railriad Company
STATEMENT OF CLAIM:
"On October 13, 1983, I, James C. Harvey, carpenter for the Maine
Central Railroad Company, and member of the Brotherhood of Maintenance of Way
Employees, made a timely bid pursuant to the agreement between the abovestated Carrier and Union
which I was then qualified.
On October 18, 1983, Maine Central Railroad Company management
awarded the crane operator position to M. L. Card, an employee over whom I
had seniority, without having first given me the trial to establish my
qualifications as a crane operator guaranteed me under Rule 17 of the abovereferenced agreement.
WHEREFORE I, James C. Harvey, pray that I be awarded both time and
wages paid to M. L. Card since October 20, 1983, the effective date of his
tenure as a crane operator, as well as all time and wages to be paid in the
future to M. L. Card as a crane operator."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 27073
Page 2 Docket No. MS-26700
88-3-85-3-450
As a result of an October 4, 1983, bid posting, on October 18, 1983,
the Carrier, through notice signed by Supervisor B&B L. G. Perkins, Jr.,
awarded the position if ^rane Operator to M. L. Card, an employee junior in
seniority to Claimant, rather than to Claimant who also bid on the position.
The record indicates that in early 1980 Claimant attempted to become qualified
as a Crane Operator, but after two weeks as a student Operator, Claimant valuitarily did not complet
conflict.
Rule 17 states:
"Promotions shall be based on ability and
seniority. Ability being sufficient, seniority
shall prevail. The Division Engineer, Engineer
of Structures, Signal Engineer or Supervisor
Work Equipment shall be the judge as to ability
subject to appeal as provided in these rules.
Employees bidding for promotion
...
within their
subdepartment, field and seniority district,
will not be disqualified until they have been
given a fair trial."
Upon review of the record, we must deny the Claim. "In light of the
long line of Awards of this Division it has been decided that fitness and
ability determinations rest with the Carrier, unless a showing is made that
the determination was arbitrary or capricious." Third Division Award 26379.
It is undisputed that at the time the bid was awarded Claimant was not considered qualified for the
training which, if successfully completed, would have resulted in his qualification in 1980. On the
Card was qualified. Indeed, the record shows that Card had been working as a
Crane Operator for almost four years. In light of the above, we are therefore
unable to find that the Carrier's conclusion that Claimant was not qualified
was either arbitrary or capricious. We must therefore defer to the Carrier's
determination of fitness and ability which permits the selection of the junior
employee Card over Claimant under the terms of Rule 17.
We are unable to conclude that Claimant was improperly denied a "fair
trial" for the position within the meaning of Rule 17 so as to dictate a
different result. Claimant quit his earlier training period because of an
alleged personality conflict. We do not find in this case that the failure of
the Carrier to grant Claimant a new trial period subsequent to the posting of
the bid equates to a showing that the Carrier violated the requirement of a
fair trial under Rule 17. Although Claimant's new bid may have indicated that
he changed his mind about his desires to be qualified as a Crane Operator
since he removed himself from consideration in 1980 and further, although
Claimant is also obviously free through another training period to establish
his qualifications for future bids, we nevertheless can find no contractual
support for Claimant's argument that the Carrier was obligated to give Claimant another trial subseq
Form 1
Page 3
Award No. 27073
Docket No. MS-26700
88-3-85-3-550
Similarly, the fact that the B&B Supervisor signed the bid award as
opposed to the Division -'ngi;ieer does not change the result. We are satisfied
that the B&B Supervisor awarded the Sid and made the determination of qualification under the .i
the circumstances of this case such was sufficient within the meaning if Rule
Claim denied.
Attest
Nancy J. DON - Executive Secretary
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 17th day of May 1988.