Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28188
THIRD DIVISION Docket No. CL-28316
89-3-87-3-871
The Third Division consisted of the regular members and in
addition Referee Irwin M. Lieberman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Missouri Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10224) that:
1. Carrier violated the Clerks' Rules Agreement when it denied the
application of Mr. R. J. Brusca, St. Louis, Missouri, for the position of
Assistant Supervisor Job No. 532, Interline Accounting Department on October
7, 1986 and instead, assigned junior employe, F. E. Randle to the position.
2. Carrier's action is in violation of Rules 3, 4, 6, 7, 8 of the
Clerks' Schedule Agreement and Testing Agreement, effective September 1, 1982.
3. Carrier shall now be required to assign claimant (Mr. Brusca) to
the position of No. 532 Assistant Supervisor with compensation for any wage or
benefit differential between Job No. 532 and that retained by claimant."
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 September 29, 1986, Claimant bid on a vacant position of Assistant
Supervisor in the Transit Area of Carrier's Accounting Department. The
Bulletin for that position contained the following qualifications for the
position:
"Applicant must have ability in supervision work and
be able to direct the activities of employees. Applicant must have sufficient experience and knowled
all phases of transit accounting necessary to advise
others, handle correspondence, make end of month work
reports."
i
Form 1 Award No. 28188
Page 2 Docket No. CL-28316
89-3-87-3-871
On October 6, 1986, Carrier found that Claimant did not possess
sufficient fitness and ability for the position and awarded the job to a less
senior clerk. In the course of the determination, Carrier offered Claimant
the opportunity to take a test to indicate his capacity to handle the work of
the position, but Claimant refused to take the test. Subsequently, Claimant
requested an Unjust Treatment Hearing which was granted. Following the Hearing Carrier reaffirmed it
Claimant had worked in the Transit Accounting Department for some
seven years, ending fifteen years prior to the bid. The employee selected for
the job had worked in the department for fifteen years, ending two years prior
to the bid. Carrier did not test the employee who was awarded the position.
Rule 4 of the Agreement deals with promotions:
"Rule 4
PROMOTION BASIS
(a) Employes covered by these rules shall be in
line for promotion. Promotion, assignments and displacements under these rules shall be based on sen
sufficient, seniority shall prevail.
NOTE 1: The word 'sufficient' is intended to more
clearly establish the prior rights of the senior of
two or more employes of the same seniority district
having adequate fitness and ability for the position
or vacancy sought in the exercise of seniority."
According to the Organization, Carrier failed to abide by the Rule
cited, since Claimant was indeed qualified - had a superior record - and his
seniority was ignored. Carrier, on the other hand, had serious reservations
concerning Claimant's ability and desired to test him to be sure that he had
sufficient ability to do the work. Carrier relied on the Letter of Agreement
dated November 7, 1978, which provides as follows:
"Dear Sir:
In recognition of the principle that tests may serve as a guide in
determining the qualification and ability of an employe to occupy a particular
position, it is understood that Carrier does have the right to formulate and
administer tests, the subject matter of which will be pertinent to the duties
and responsibilities required of the position involved. Such tests will be
formulated, adminstered and graded by supervisory personnel.
It is also understood that where skills and/or dexterity are
involved, such as in taking shorthand, dictation, typing, keypunching, and/or
the operation of other office machines and equipment, standard and generally
accepted tests and methods will be used.
Form 1 Award No. 28188
Page 3 Docket No. CL-28316
89-3-87-3-871
In other situations where there is some question as to the fitness
and ability of an employe to occupy a position, and a test is given, it is
understood:
1. The test will cover all of the general duties and
responsibilities of the position involved.
2. There will be a standard passing grade established
and published which shall be uniformly applied.
3. Should the senior applicant for a position be required to take a test and not pass same, othe
a test, in seniority order, if there is a question
as to their fitness and ability.
4. It is understood that upon request the involved employe's representative (the District or Div
Chairman where possible) will be accorded opportunity
to be present during the time test is being administered, and will be accorded opportunity thereafte
review the test and the involved employe's responses
thereto.
Carrier supervisors and officers will cooperate with
employes in furthering their genuine desire and efforts to become qualified for promotion and/or adv
It is well established that this Board has no right to make any determination with respect to an
only be fulfilled by Carrier. our sole function is to determine whether or
not Carrier's actions in its decision making were arbitrary, capricious or
discriminatory. This dispute differs from most other fitness and ability disputes in the existence o
real issue in this matter is whether Carrier acted arbitrarily or capriciously
in insisting that Claimant take the test in order to be awarded the position.
A careful examination of the record of this matter indicates that
Carrier may have been predisposed to select the ultimately successful bidder
for the position. Nevertheless, the record reveals a legitimate question by
the Carrier as to whether or not Claimant, based on experience which ended
fifteen years earlier, had sufficient ability to perform in the position in
question. Thus, the decision to ask Claimant to take the test cannot be
characterized as capricious, arbitrary or discriminatory. His refusal to take
the test, therefore, was the proximate cause of his not being awarded the
position. The Claim must be denied.
Form 1 Award No. 28188
Page 4 Docket No. CL-28316
89-3-87-3-871
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 20th day of November 1989.