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
(GL-10325) that:
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:
"To-be-sure, there are graduations of competency
levels in all training, qualifying and performance situations, but the type and caliber of incompete
palpable incompetency. Moreover, by definition,
the need for a qualifying period indicates an
employee need not be totally competent to perform all functions of a position."
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.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 28455
Page 3 Docket No. CL-28593
90-3-88-3-445
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
ancy J r - Executive Secretary
Dated at Chicago, Illinois, this 19th day of July 1990.