Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27885
THIRD DIVISION Docket No. MW-26898
89-3-85-3-672
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
permit Trackman G. E. Altman to displace a junior trackman (J. A. Pigg) on and
subsequent to December 12, 1983 (System Docket CR-1233).
(2) Because of the aforesaid violation, Trackman G. E. Altman shall
be compensated for all wage loss suffered December 12, 1983 through January
23, 1984."
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.
Claimant, a Trackman with a seniority date of May 1, 1974, was furloughed on December 8, 1983, w
On December 12, 1983, Claimant advised the Carrier of his desire
to displace a Trackman with a seniority date of October 25, 1976, who was
assigned as a "partmman" for an Inter-Regional Dual Rail Train Gang working in
District 2 at Canton, Ohio. Carrier did not allow the displacement. Claimant
was subsequently recalled to service on January 23, 1984. The instant Claim
seeks compensation for the period December 12, 1983, through January 23, 1984,
and alleges that Carrier violated the Agreement when it failed to permit Claimant to displace.
Carrier asserts that the matter of determining an employee's qualifications to perform the work
prerogative of Management, and that as long as such prerogative is not exercised in an arbitrary, di
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89-3-85-3-672
not substitute its judgment for that of the Carrier. In the instant case,
Carrier maintains, the duties and responsibilities of a MW Partsman are specialized and unique, and
conversant with Carrier's ordering systems and inventory in order to properly
and efficiently maintain equipment and parts on hand. Inasmuch as the Carrier
determined that Claimant was not qualified as a Partsman, and the employees
have never proven otherwise, and Claimant never requested to demonstrated his
skills, Carrier argues that it was under no contractual obligation to allow an
unqualified individual to displace a qualified employee. Carrier stresses
that it was not required to allow Claimant to displace a qualified employee
and learn the job himself as he went along. A Partaman's duties carry a high
degree of responsibility, and Carrier asserts that it cannot leave that position open to chance.
The Organization contends that Rule 4, Section 2 clearly provides
that an employee may exercise his seniority to displace a junior employee when
his position is abolished, provided he does so within ten (10) days of the
abolishment. In this case, Claimant's actions were in accordance with Rule 4,
Section 2, and, in the Organization's view, Carrier refusal to permit the displacement violated the
Moreover, the Organization argues that Carrier's arguments to the
contrary are unavailing. The junior employee was not working as a "Partsman,"
the Organization points out, since there is no such classification listed
within the Agreement. He holds seniority as a trackman, and as such he was
subject to displacement by an employee with more seniority. Any other interpretation of the rules wo
the Organization urges. To deny this Claim would permit Carrier to subvert
the seniority provisions of the Agreement by familiarizing junior employees
with the duties of a position and then assigning them to such positions ahead
of senior employees who would have no right to displace them because of
alleged lack of qualification or insufficient skills and abilities. Such an
untenable result is-not called for here, the Organization submits.
Further, the Organization maintains that Carrier has never stated a
single objective reason to support its contention that Claimant was not
qualified. In the Organization's view, Claimant was qualified to fill the
position in question by the simple fact that he could read and write and
demonstrate average intelligence. Claimant may have required a short time to
familiarize himself with the duties of the position, the Organization acknowledges, but "fitness and
immediately qualified to step in and fill the job without assistance or
guidance. The employees submit that the seniority provisions of the Agreement
prohibit the Carrier from disqualifying an employee from a position unless the
employee fails a fair and objective test of his aptitude for a position after
on-the-job training. In this case, Carrier failed to show that Claimant
lacked the skills necessary to learn to order parts, and, therefore, the
Organization asks that the Claim be allowed.
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Rule 4, Section 2(a) and (b) reads:
"Section 2. Exercise of seniority.
(a) Except as otherwise provided, an employee may
exercise seniority to a position for which he is
qualified:
1. when his position is abolished; . . .
(b) An employee entitled to exercise seniority
must exercise seniority within ten (10) days after
the date affected. Failure to exercise seniority
to any position not requiring a change in residence
shall result in forfeiture of all seniority under
this Agreement. If he presents evidence to his
supervisor that extenuating circumstances prevented
the exercise of seniority, the ten (10) days
specified above shall be extended proportionately
to the extent of his absence on account of such
circumstances. An employee who is unable to so
exercise seniority and who elects not to exercise
other seniority, shall be furloughed."
The issue before the Board in the instant case is whether Claimant falls under the rubric of Sec
been permitted to "exercise seniority to a position for which he is qualified
. . . The Board in prior awards has clearly articulated the scope of its
review of Carrier's determination regarding an employee's fitness and ability
to perform a particular job. Illustrative of the many awards is Third Division Award 14040, which st
"We have considered Rule 2-A-2 and 2-A-3, involving
the same parties, in many cases before this Board.
It is a well established principle that it is the
prerogative of management to determine sufficient
fitness and ability. See Awards 14011, 12994,
9324, 8196, 6532, 6028 and others. It is also a
well established principle that the burden of proof
is on the Employes to show that the Carrier was
arbitrary, capricious and discriminatory when it
disqualified claimant."
In this same connection, we take note of Third Division Award 6028,
which states:
"Whether an employe has sufficient fitness and
ability to fill a position is usually a matter of
judgment. The exercise of such judgment is a
prerogative of the management and unless it has
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89-3-85-3-672
been exercised in an arbitrary, capricious or
discriminatory manner we should not substitute our
judgment for that of the management."
The Organization really does not dispute that the foregoing standards
and allocation of the burden of proof are equally applicable in this case.
Instead, it maintains that the Carrier's determination was arbitrary because
Claimant possessed the necessary requisite abilities to perform the job, and
should have been given the opportunity for training in order to determine
whether he could in fact perform the duties of the position within a·reasonable time.
The Board recognizes that these types of disputes are not easily
resolved. Seniority provisions, designed on the one hand to give recognition
to the right and responsibility of Carrier to manage its enterprise, while on
the other hand protecting senior employees, must somehow achieve a proper
balance that gives effect to the language of the Agreement as it was intended
by the parties. Nonetheless, as the foregoing awards demonstrate, the Board
is not without guidance in this area. We adhere to the long-established rule
that the Carrier judges an employee's qualifications and the Board is not
competent to overturn those determinations unless there is a showing that
Carrier acted unreasonably, arbitrarily or capriciously. Based on our review
of the record, we find no evidence that Carrier so acted here. It is Carrier's judgment that the dut
employee, are specialized, need extensive knowledge, dependability and responsibility, and, as such,
those of a Trackman. Although the Organization disputes Carrier's assessment
of the position, it offered no probative evidence to support its contention,
nor did it produce any evidence that Carrier's decision was improperly based
upon arbitrariness, caprice or discrimination. We therefore must rule to deny
the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. H v - Executive Secretary
Dated at Chicago, Illinois, this 4th day of May 1989.