Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27283
THIRD DIVISION Docket No. CL-27241
88-3-86-3-331
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10103) that:
1. Carrier violated the rules of the current Clerks' Agreement at
Los Angeles, commencing April 24, 1985, when Ms. J. D. Sellers was improperly
assigned to Towerman-LAUPT Position No. 0136, and
2. Mr. J. J. Clarke shall be assigned to Towerman - LAUPT Position
No. 0136 and shall be compensated for eight (8) hours' pay at the pro rata
rate of Position No. 0136 for each work day of that position commencing April
24, 1985, including interest payable at the prevailing prime rate, in addition
to any other compensation received and continuing so long as Mr. Clarke is
wrongfully deprived of his right to work Position No. 0136."
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 waived right of appearance at hearing thereon.
On April 17, 1985, a vacancy on Position No. 0136, Towerman - Los
Angeles Union Passenger Terminal (hereafter LAUPT) was advertised and Claimant
bid. The position works under both AT&SF and Southern Pacific Rules. LAUPT
requires that Towermen pass the SP Book of Rules and, further, employees who
have not worked as a Towerman in a twelve month period must pass the Book of
Rules again. Claimant had not passed the Southern Pacific Book of Rules
within a twelve month period and the position was awarded to a junior employee
on April 24, 1985. The junior employee was in turn displaced on May 8, 1985,
by an employee senior to Claimant.
The following Rules are relied upon in part by the Organization:
Form 1 Award No. 27283
Page 2 Docket No. CL-27241
88-3-86-3-331
"RULE 8--PROMOTIONS, ASSIGNMENTS, DISPLACEMENTS
Employes covered by these rules shall be in
line for promotion. Promotions, assignments and
displacements under these rules shall be based on
seniority, fitness and ability; fitness and ability
of applicants being sufficient, seniority shall
prevail.
NOTE: The word 'sufficient' is intended to
more clearly establish the prior rights of the
senior of two or more qualified employes
having adequate fitness and ability for the
position or vacancy sought in the exercise of
seniority.
RULE 9-QUALIFYING
9-A. Employes with sufficient fitness and
ability will, when bidding on bulletined positions,
transferring, exercising displacement rights and/or
when recalled for a new position or bulletined
vacancy, be allowed 45 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.
9-B. When it is decided, following informal
hearing with employe involved, that the employe is
not qualified for position to which assigned, he
may be removed therefrom before the expiration of
45 working days. At such informal hearing the
employe may be represented by his duly accredited
representative or an employe of his craft. The
informal hearing shall be held within three days
from date employe is notified unless a longer time
is agreed to. The right of appeal from Management's decision is recognized.
9-C. Cooperation will be given employes from
all concerned in their efforts to qualify. If
Management requires an employe to break-in on a
position to which he is assigned for the purpose of
familiarization or if the employe requests break-in
time and it is granted by Management, the employe
will receive the rate of the position. All breakin time must be for a full eight hours and during
the regularly assigned hours of the position. As
of the date the break-in commences, such employe
will be considered as the occupant of the position.
Form 1 Award No. 27283
Page 3 Docket No. CL-27241
88-3-86-3-331
Management will determine the total number of
break-in days required. The number of days allowed
hereunder will not be counted as part of the 45
working days referred to in this Rule 9. During
the break-in period, an employe will not be con
sidered available under Rule 14-C(2) nor will he be
diverted under Rule 32-N.
* * *·.
In its letter of August 1, 1985, advancing the claim, the Organization argued:
"Claimant Clarke had previously written the
Southern Pacific Examination on Rules and
Regulations in January, 1981 . . . .
Carrier cannot successfully contend Claimant Clarke
lacks the sufficient fitness and ability for Position No. 0136 - LAUPT, as he clearly established
this when assigned to the same position in January,
1981 and successfully performed the necessary
duties until June, 1981 when released from the
position."
Carrier did not deny these assertions.
The Organization argues that under Rule 8 the test is whether a
bidding employee has "sufficient fitness and ability," not whether he or she
is "qualified."
This case presents the Board with the issue of whether there is any
tension between Rule 9 and Carrier's right to determine the question of
"sufficient fitness and ability." We think there is not but we believe there
is a great danger in this case of confusing terms. "Sufficient fitness and
ability" and "qualification" are not synonymous. Rule 9 recognizes this by
allowing employees with fitness and ability a period of time within which to
qualify.
Neither do we view this case as a question of Carrier's undoubted
right to require examinations. That too is a different issue from the fitness
and ability question presented by the facts of this case. Here, as far as the
record shows, Carrier at no time raised objection to Claimant's fitness and
ability in any context other than his not having written the test within a
twelve month period. It did not deny Claimant had successfully written the
test beyond the twelve month period and in fact informs this Board that Claimant again passed the Bo
of 1981.
Form 1 Award No. 27283
Page 4 Docket No. CL-27241
88-3-86-3-331
Rule 9 contemplates a judgment regarding fitness and ability and then
allows time to "qualify." We believe that Rule is frustrated by a mechanical
approach in which an employee who had passed the qualifying test and successfully performed the job
and ability solely because he had not rewritten an examination.
We are aware of, and in no way should be taken as disagreeing with,
the numerous cases holding it is the Carrier's prerogative to determine fitness and ability. Carrier
not believe Carrier made any judgment regarding fitness and ability here.
Rather it took the position Claimant was "not considered as having the fitness
and ability . . . until he has . . . passed" the examination.
Awards of this Board have held that Claimant:
"has the burden of coming forward with evidence of
probative value to support its contention as to
fitness and ability." Third Division Award 19129.
It is undenied that Claimant had written the test in the past and
satisfactorily performed the precise work in question for a substantial
period. We believe this meets the required burden.
As noted above, an employee senior to the Claimant displaced the
junior employee on May 8, 1985. Accordingly, Claimant should be compensated
at the Agreement rate for the period he would have held Position No. 0136 had
the Agreement not been violated, that is, until May 8, 1985. We will not
require payment of interest as, contrary to the Organization, we find no
Agreement basis for such payment.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD
ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. D
gr-
Executive Secretary
Dated at Chicago, Illinois, this 12th day of August 1988.
CARRIER MEMBERS' DISSENT
TO
AWARD 27283, DOCKET CL-27241
(Referee Cloney)
The Majority focuses its concern on the "great danger" of
confusing the terms "fitness and ability" and "qualification."
Unfortunately, in the process of struggling to avoid the "great
danger," it completely lost sight of the primary issue in the
dispute, namely, whether a carrier can violate its Agreement with
its labor organizations when it enforces the Operating Rules of
another carrier.
The undisputed facts show that the position sought by the
Claimant was not on the Carrier Respondent, the ATSF, but was,
instead, on the LAUPT, a separate carrier entity. The testing
requirement involved here was not a Rule requirement of the ATSF
but a requirement of the Operating Rules of the LAUPT, for whom
the Claimant would be working if his bid had been accepted.
Indeed, the test was not of the operating Rules of the ATSF but
of the Southern Pacific Railroad Company.
The central issue, accordingly, was whether the ATSF
violated its Agreement with the Organization when it informed the
Claimant that it could not accept the Claimant's bid for
employment on the LAUPT until the Claimant satisfied the LAUPT's
testing requirement. Such issue, obviously, cannot be determined
on the basis of whether the ATSF notified the Claimant that his
failure to comply with LAUPT's Rules resulted in his not being
"fit and able" or his not being "qualified."
PAGE 2
Fortunately for the Carrier, the LAUPT position in dispute
was subsequently awarded to an employee senior to the Claimant,
thus ending the Claimant's asserted right to it. If such were
not the case, the Carrier would be confronted with an Award
requiring it to compensate the Claimant on a continuing basis
until the ATSF awarded the position to the Claimant, an award
which the ATSF does not have the power to accomplish.
We also do not agree with the Majority's holding that the
Claimant's refusal to take the test did not impact his "fitness
and ability." The Majority's reasoning on this issue is far from
clear. The facts of record show that the Claimant last took the
test in January, 1981, and that Claimant had last held the
position in June, 1981. The test involved the operating Rules of
the Southern Pacific Railroad Company and Claimant apparently had
not worked under such Rules for approximately four years. The
ATSF contended that after a period of four years, it was
appropriate to ensure that the Claimant knew the Rules of the
Southern Pacific. Clearly, such test was a determinative factor
of the Claimant's "fitness and ability."
The Majority cites the fact that the Claimant finally did
agree to take the test in May, 1985, and passed it at that time.
Apparently, the Majority considers such fact as proof that
Claimant was "fit and able" in April, 1985, before he took the
test. To such extent, the Majority clearly misapprehends the
Carrier's position. The Carrier has never argued that Claimant
could not establish his fitness and ability, it simply required
the Claimant to do so before it assigned him the position by
PAGE 3
passing the test. Indeed, the Majority agrees with the ATSF that
it had the "undoubted right to require examinations." Surely the
Majority cannot be suggesting that while it has the "undoubted"
right to require an examination, the employee has the equal right
to refuse to take the test so long as he can subsequently show
that he would have passed the test if he had deigned to take it.
For all the foregoing reasons, the Majority was in error and
we Dissent.
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