Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27220
THIRD DIVISION Docket No. CL-27007
88-3-86-3-310
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Trans-Continental Freight Bureau, Weighing and Inspection
( Department, South Pacific Coast Territory
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10100) that:
(a) The Bureau violated the provisions of the current Agreement at
San Francisco, California, on February 22, 1985, when it denied the right of
displacement by Beatrice Wahlbeck onto Position No. 68 - Transit Clerk/Stenographer, and
(b) Beatrice Wahlbeck shall now be compensated for eight (8) hours'
pay at the rate of Position No. 68 - Transit Clerk/Stenographer for each work
day beginning February 22, 1985, and continuing until she is placed upon this
position."
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 employees 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 waived right of appearance at hearing thereon.
The basic facts are not disputed. The Claimant's regular position
was abolished and on February 22, 1985, she attempted to exercise her seniority rights and displace
"Returning your notice of exercise your
seniority over Mr. Bell, Position No. 4 - Head
Clerk, Rate, Weight and Description. Am unable to
accept this notice as Position No. 4 is up for bid.
If it is your desire to have that position, please
Form 1 Award No. 27220
Page 2 Docket No. CL-27007
88-3-86-3-310
place a bid on my desk this evening. When I read
this notice I attempted to catch you before you
left the office in order to inform you of this, but
you had already left.
Regarding your second choice of Position No.
68 - Transit Clerk/Stenographer, as computer com
munications is part of the job description, this is
not available to you, because of your past perfor
mance."
This was a reference to the fact that in 1984 the Claimant was assigned to a
payroll and utility position which required data inputing but the work had to
be removed from her due to unsatisfactory performance. It is also undisputed
that Position No. 68 involved computer work.
Subsequent to February 22, 1985, a claim was filed protesting the
Carrier's decision not to allow the Claimant to displace the junior occupant
of Position No. 68. The Claim was denied. During the conference held on
December 16, 1985, the Carrier agreed to allow Claimant Wahlbeck's displacement onto Position No. 68
would be removed from that position and with the understanding of the organization's rights t
of the claim. Claimant accepted this offer and displaced onto Position No. 68
on January 20, 1986. Thus, the claim is limited to backpay.
The merits of this claim involve the application of Rule 7 which is
quoted as follows:
"(a) Employes with sufficient fitness and ability
will, when bidding on bulletined positions, exercising displacement rights and/or when recalled for
a new position or bulletined vacancy, be allowed
thirty (30) working days in which to qualify, and
failing, shall retain all their seniority rights
and may bid on any bulletined position but may not
displace any other employe."
The Board has faced similar facts under similar, if not identical,
rules. The Carrier is reserved the right to judge an employee's fitness and
ability in displacements. When the Carrier makes such a determination and
there is no evidence that such a determination was arbitrary or capricious,
the burden shifts to the employee to establish the Carrier's determination was
in error.
In this case, the record fails to bear out that the organization has
sustained this burden. In fact, not only is there the matter of computer work
being removed from Claimant's position less than 12 months earlier, there is a
tacit admission she wasn't qualified since, in effect, an opportunity to train
was requested.
Form 1 Award No. 27220
Page 3 Docket No. CL-27007
88-3-86-3-310
In view of the foregoing, the claim must be denied.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. r - Executive Secretary
Dated at Chicago, Illinois, this 20th day of July 1988.