Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28455
THIRD DIVISION Docket No. CL-28593
90-3-88-3-445
The Third Division consisted of the regular members and in
addition Referee Eckehard Muessig when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Soo Line Railroad Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood


1. Carrier violated the Clerks' Rules Agreement when it unjustly treated employee, Roy Scott Jr., by disqualifying him on Yard Clerk Position No. 25780 on April 18, 1984.

2. Carrier shall now be required to assign employee Roy Scott Jr. to Yard Clerk Position No. 25780 and compensate him an additional eight (8) hours pro rata for each work day Claimant is held off Position No. 25780."

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.

The relevant facts in this case show that the Claimant bid for and was awarded Yard Clerk Position No. 27580. The principal duties as stated on the Bulletin which announced the vacancy were: "Check yard, check perishables, make train lists and operate IBM machine." On April 18, 1984, after working the Yard Clerk position for just two (2) days, his Supervisor disqualified him. At the Unjust Treatment Hearing held on this matter, the Supervisor explained his reason for disqualifying the Claimant, stating that the Claimant himself had expressed the opinion that he could not perform the job and the suggestion that the Supervisor use an extra person while the Claimant "broke in." He further testified that even after he assisted and instructed the Claimant during the two (2) day period, he determined on the basis of his observation that the Claimant did not have adequate qualifications and did not possess sufficient fitness and ability. It is this determination that triggered the events that led
While there are a number of Rules that, to various degree are applicable to this claim, Rule 8(a) of the Agreement is controlling.
Form 1 Award No. 28455
Page 2 Docket No. CL-28593
90-3-88-3-445
"When an employe bids for and is assigned to a permanent
vacancy or new position he will be allowed thirty (30)
working days in which to qualify and will be given full
cooperation of department heads and others in his
efforts to do so. However, this will not prohibit an
employe being removed prior to thirty (30) working days
when manifestly incompetent. If an employe fails to
qualify he shall retain all seniority rights but cannot
displace a regularly assigned employe. He will be
considered furloughed as of date of disqualification and
if he desires to protect his seniority rights he must
comply with the provisions of Rule 12(b)."
The initial. burden in these matters rests upon the Organization, a
burden which it has met. The Claimant, at the time of the dispute, had had
extensive experience as a Clerk beginning in early 1950, including approxi
mately seven years as an IBM Clerk. Accordingly, the burden of proof then
shifted to the Carrier to show that the Claimant was "manifestly incompetent"
pursuant to Rule 8(a). Clearly, given the strong relevant language of this
Rule, it contemplates a longer period to qualify than found in this case.
Third Division Award 25365 between these parties, held in pertinent part that:



Given the Claimant's past experience and the testimony of the Supervisor at the hearing held on this matter, we conclude that it was not shown that the Claimant was "manifestly incompetent."

Turning to the remedy, the Board notes that the record is not sufficiently clear on the specific entitled to lost compensation. Accordingly, the Carrier is required to make the Claimant whole. In situations such as here, this means that the Claimant is entitled to lost compensation from the time he was furloughed until he was recalled as well as payment thereafter for the difference in wages between the position for which recalled and the position at issue herein.




Form 1 Award No. 28455
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90-3-88-3-445


                          By Order of Third Division


Attest
ancy J r - Executive Secretary

Dated at Chicago, Illinois, this 19th day of July 1990.