(i) The disqualification of Mr. J.A. Weyland as a work equipment operator on May 4, 1990 was improper, as a result of unjust treatment and in violation of the Agreement (System File D-90-06/MW-1090).

(2) As a consequence of the violation referred to in Part (1) above. Claimant J. A. Weyland shall `*** be returned to service as a Work

Equipment Operator with all seniority and other rights unimpaired and compensated for all wage loss suffered, including overtime, commencing May 4, and continuing until such time as violation ceases in accordance with Agreement Rules 29 and 30.1"

Parties to said dispute were given due notice of hearing thereon.

The Claimant made a bid application for the position of Operator in the Road Equipment Subdepartment. He was assigned to this position on April 10, 1990 and was given the opportunity to train on two different machines. There is no dispute that the period involved in such training was considerably less than 30 days.

Rule 9, Promotion, reads in pertinent part as follows:

"After an applicant has successfully completed the requirements prescribed in subsection (d) hereof it will be the responsibility of the supervisor in charge of the work on the seniority district to determine the ability of the applicant to perform the work to which promotion is sought.

Such determination shall be made by providing the applicant a thirty (30) day trial period in which to demonstrate his ability, unless during such thirty (30) day trial period the supervisor in charge can show by reasonable evidence that the applicant does not possess sufficient ability to qualify for the new position."

"After observing your operation of Work Equipment Machinery during the past 30 day trial period, it is my opinion that you do not possess the abilities that are needed to qualify as a Work Equipment Operator. I have based my decision on my observations of your hand/eye coordination, attention span, and your genera! handling of the machine you have been assigned to. As a result of these observations you do not qualify."

This notification came less than 30 days after the Claimant commenced his qualification period. If this letter were shown to be factual, it might well be the basis of "reasonable evidence" that the Claimant did not possess "sufficient ability to qualify." A mayor difficulty is that such is not the case. First, there was no 30-day trial period, whether considered in calendar days or work days. Second, the letter refers to a "machine" rather than two "machines" to which the Claimant was assigned. Third and most significantly, the Supervisor made no personal "observations" of the Claimant's work. This was admitted in testimony before an Unfair Treatment Hearing requested by the Claimant.

Beyond this, the testimony of those Operators and supervisory personnel involved in the Claimant's training, while not enthusiastic about the Claimant's performance. provided no indication of "reasonable evidence" that a full 30-day trial period should have been curtailed.

In support of this is Third Division Award 31267 which concluded, under similar circumstances and comparable Agreement language, as follows:

"This Board has labored with Ithel record in no small part due to its reluctance to interfere with the Carrier's judgment in questions of abilitv . . . However. in these circumstances, the Board fails to find the supportive evidence to uphold the Carrier's disqualification. The Board concludes that the Claimant was treated unjustly. The probative evidence of record fails to support either that the Claimant lacked the ability, or that he was given 'a fair chance to demonstrate his ability to meet the practical requirements of the position."'

Put another way, the question of qualification (absent specific language to the contrary) rests with the Carrier, short of arbitrarv, capricious or discriminatorv judgment. However, when the Carrier curtails an employee's 30-day entitlement to "demonstrate his ability," such becomes an affirmative defense, placing on the Carrier a heavier burden of proof. ]]ere, there is no evidence which would support such proof.

As to remedy, the Board finds appropriate the solution provided in Third Division Award 30586, with minor modifications, as follows:

"Claimant shall be made whole for the (difference( in wages earned by the . . . employee who received the job and those wages earned by Claimant for the time that the job existed. In the event the disputed job still exists, the Carrier's liability shall run until such time as Claimant is given (a further opportunity under Rule 91 to qualify, Iceasing only ifl it is fairly determined that Claimant is not qualified for the position."

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Does the language in the Order of Award 31809 which states as follows:

"As to remedy, the Board finds appropriate the solution provided in Third Division Award 30586, with minor modifications, as follows:

`Claimant shall be made whole for the [difference] in wages earned by the . . . employee who received the job and those wages earned by Claimant for the time that the job existed. In the event the disputed job still exists, the Carrier's liability shall run until such time as Claimant is given [a further opportunity under Rule 9] to qualify, [ceasing only in it is fairly determined that Claimant is not qualified for the position.'

require monetary remedy to the Claimant beyond October 31, 1990?"

Serial No. 381 Interpretation No. 1 to Award No. 31809

The Organization seeks the Board's interpretation of the phrase, "for the time that the job existed."

The Ca rrier initially contends that the Organization is improperly seeking "under the guise of interpretation" a "decision over a factual dispute"; that is, the question of whether the position was actually abolished. The Board rinds, however, there is no dispute as to the meaning of the Award's phrase, "for the time that the job existed." Thus, only by review of the "facts," as the parties view them, can an interpretation be reached.

The Carrier contends that the position ceased to exist as of November 1, 1990. As a result, the Carrier believes that payment of the wages as directed by the Board should be from the period from the Claimant's (premature) disqualification on May 4, 1990 through October 31, 1990.

In support of its position, the Carrier provides records to show that the three employees holding the position in question immediately junior to the Claimant were required to exercise their seniority to other positions as of November 1,1990. It follows, according to the Carrier, that had the Claimant held one of these three positions (presuming he had been found qualified when he initially held the position), he would have been required to exercise his seniority elsewhere as of November 1, 1990. This indicates, again according to the Carrier, that the "position ceased to exist" and wage differential payments would cease at this point under the terms of the Award.

The Organization states that, following November 1, 1990, employees junior to the Claimant were assigned as Work Equipment Operators, and that Work Equipment Operator positions were later reestablished. This, the Organization argues, means that the "position" continued to exist and that wage differential payments to the Claimant should extend beyond November 1, 1990.

Work assigned to the position of Work Equipment Operators obviously continues at varying levels of activity. Award 31809 concerned a particular Work Equipment Operator position for which the Claimant was attempting to qualify. The Carrier demonstrated that, had he qualified, the Claimant's seniority (and that of two other employees) would have required them to leave the position as of October 31, 1990.

Referring now to the Award, monetary remedy was limited to a period that the "job" (not the work in general) existed. The Carrier demonstrated that this period ended on October 31, 1990. The Award does not suggest further payment to the Claimant if or when the "job" was reestablished under the normal procedures of filling vacancies or adding to the force.

Accordingly, the Question for Interpretation is answered in the negative.

Referee Herbert L. Marx, Jr., who sat with the Division as a neutral member when Award 31809 was adopted, also participated with the Division in making this Interpretation.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 19th day of June, 2000.