Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28929
THIRD DIVISION Docket No. CL-29248
91-3-90-3-167
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Organization
(GL-10424) that:
1. Carrier violated the effective agreement when it failed and
refused to assign Mr. A. R. DiSalvo to the position of Relief Machine
Operator-Assistant Machine Operator effective May 14, 1989.
2. Carrier shall now compensate Mr. DiSalvo for the difference
between the rate of the position of Relief Machine Operator-Assistant Machine
Operator and that of Janitor for May 14, 1989, and for each and every day
thereafter that a like violation exists."
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 24, 1989, the Carrier posted a temporary position of Machine
Operator/ Assistant Machine Operator to be effective May 14, 1989. The Carrier
received four (4) bids and awarded the position to the most junior applicant.
The Organization then filed this claim contending none of the four applicants
was qualified under Rule 35 and, accordingly, the position should have been
awarded to the senior applicant. The Carrier contends it properly awarded the
position to the junior applicant since she had the requisite thirty (30) days
of experience while the Claimant did not. The Carrier insists that in circumstances where one bidder
seniority may be ignored. The Carrier points out it is a well established
and recognized practice that thirty (30) days of prior work experience doing
Machine Operator/Assistant Machine operator work is necessary in order for an
employee to be considered as having fitness and ability.
Form 1 Award No. 28929
Page 2 Docket No. CL-29248
91-3-90-3-167
The Carrier stresses the Monroeville Data Center and computer equipment contained therein are sh
Carrier contends the employees of the two carriers work on the same equipment.
The Carrier asserts the junior applicant, who was hired on August 22, 1984,
became a qualified Machine Operator while employed with the Union Railroad.
The Carrier, therefore, maintains she had over thirty (30) days of experience
doing Machine Operator and Assistant Machine Operator work on the very same
equipment.
The Organization notes the Carrier's position with regard to past
practice in awarding Assistant Machine Operator and Machine Operator positions
to employees who had thirty (30) or more days of actual experience. The Organization acknowledges it
.award 23241, but, likewise, acknowledges the Carrier position was upheld by
that Award. The Organization argues the Carrier has disregarded its prior
position and past practice in this case because the junior employee's prior
experience was obtained through' a different carrier. The urganization insists
the parties' practice did not envision that outside employment would satisfy
the thirty (30) day experience requirement. Lastly, the Organization avers
the Carrier previously recognized the junior employee's previous experience
did not qualify her for such an assignment.
This latter contention deserves examination. On August 11, 1989, a
conference was held by the parties, and this case, along with another claim,
was discussed. The record of that conference indicates the Carrier was questioned over why the junio
Machine Operator (temporary) in September 1987, if, in fact, she was considered qualified. The Carri
not relevant because she did not bid on the position. This response misses
the point in that the record clearly shows the junior applicant was on furlough and had no right to
This Board fully endorses the finding of Award 23241. However, under
the narrow fact situation of this case, the Carrier has taken inconsistent
positions with regard to its assessment of the fitness and ability of the
junior applicant. The record clearly shows that on September 24, 1987, the
Carrier awarded the Assistant Machine Operator position to an employee who was
"untrained." If the Carrier believed the junior applicant possessed the requisite fitness and abilit
prior to 1984, it has not reasonably explained why it did not assign her to
that 1987 temporary vacancy, but instead chose to fill the position with an
untrained employee. Following the filling of that 1987 vacancy, the record
establishes the junior applicant did not work as an Assistant Machine Operator
or a Machine Operator for thirty (30) days. Given this fact, the Carrier's
present position is in opposition to its earlier actions and must be considered arbitrary.
Form 1 Award No. 28929
Page 3 Docket No. CL-29248
91-3-90-3-167
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Lancy J~8 -Executive Secretary
Dated at Chicago, Illinois, this 29th day of August 1991.
CARRIERS' DISSENT
TO
THIRD DIVISION AWARD 28929, DOCKET CL-29248
(Referee McAllister)
The Majority erred in finding Carrier adopted
inconsistent positions. To the contrary, when the 1987
event occurred, the employee who bid and was awarded the
position in lieu of the Claimant in this dispute was then
furloughed and did not bid the vacancy. (Furloughed as well
as assigned employees do have the right to bid on any and
all positions bulletined, contrary to the Majority's
Findings.) Carrier, in the 1987 incident, assigned the
senior untrained applicant to the position.
In the dispute adjudicated in Award 28929, the same
junior employee who did not bid in 1987, bid and was
assigned in 1989, consistent with Carrier's Board-supported
practice of assigning employees to bulletined vacancies who
have at least 30 days prior experience performing the work
required of the bulletined position.
The Majority erred. We do gids nt. '
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