Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33412
Docket No. CL-34522
99-3-98-3-159
The Third Division consisted
of
the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation
STATEMENT~OF CLAIM:
"Claim
of
the System Committee
of
the Organization (GL-11959) that:
(a) The Carrier violated the TCU/NRPC NEC Agreement, in particular Rules 1-B-1,
2-A-5, 3-C-1 and others when it failed to allow Claimant Gary Jolley to exercise
displacement rights on a Crew Dispatcher position in the Crew Management
Services Department, 30`° Street, Philadelphia, PA, on May 26, 1994.
(b) Claimant G. Jolley be allowed to exercise displacement rights on to a Crew
Dispatcher position effective immediately according to his seniority rights and
that the Claimant be compensated at the Crew Dispatcher rate for each and
every day withheld from a Crew Dispatcher position commencing May 26, 1994
and continuing each and every day thereafter until claim is properly adjusted.
(c) Claim filed in accordance with Rule 7-B-1, is in order and should be allowed."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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
Form 1 Award No. 33412
err'
Page 2 Docket No. CL-34522
99-3-98-3-159
Parties to said dispute were given due notice
of
hearing thereon.
On May 26, 1994, Claimant, an Amtrak employee since 1976, attempted to
exercise his seniority to a Crew Dispatcher's position. Claimant had been out on
medical leave from 1989 to 1994. Carrier denied his exercise
of
seniority based on his
previous work experience as Crew Dispatcher and his disqualification from that position
in April 1997. The Carrier asserts that the disqualification still stands and, in addition,
that the Claimant was counseled and disciplined on numerous occasions prior to his
disqualification for failing to properly perform his duties as Crew Dispatcher.
At issue in this case is whether the Carrier violated the Agreement when it failed
to allow Claimant to exercise his seniority rights.
In Forth Division Award
No.
4093:
"Ability, fitness and seniority are essential to appointment to positions
of
yardmaster. The Company's right to require employees to establish that
they possess necessary qualifications, prior to being awarded such position
is recognized."
The Board went on to state in the same Award,
"First it is well established that Carrier has the right and sole discretion
to make determinations with respect to qualifications; we will not disturb
that determination unless it is clear, by convincing evidence, that Carrier's
decision was arbitrary or capricious. Furthermore, the burden
of
establishing the improper determination by Carrier falls on the
Organization (see Awards 1372, 1940, 3728 and many others)."
In Public Law Board
No.
4418, Case No. 5 it was also stated:
"The initial question in this case involves the application
of
the "fitness and
ability" standard
of
Rule 5 to these circumstances. Rule 5 itself expressly
provides that the Carrier shall judge a candidate's fitness and ability and
that its judgement must stand unless it is arbitrary, capricious or
discriminatory. In Public Law Board No. 2792, Case No. 23 (Eischen), it
Form 1
Page 3
Award No. 33412
Docket No. CL-34522
99-3-98-3-159
was said that Rules 5 and 8 of the parties' Agreement should be read in
harmony, so that
" . . . the employee applicant possesses "sufficient" fitness and
ability for purposes of Rule 5 if s/he may reasonably be expected to
competently perform all the duties of the job within the 30-day
qualifying period of Rule 8."
It is clearly established in the aforementioned Awards that it is within the scope
of the Agreement for the Carrier to make determinations based on fitness and ability.
The Organization has failed to provide clear, convincing evidence that the Carrier
violated the agreement by acting in an arbitrary or capricious manner in barring
Claimant from exercising his displacement rights. Therefore, since the Organization has
failed to meet the burden of persuasion, the claim must be denied.
AWARD
Claim denied.
ORDER
This Board, after consideration
of
the dispute identified above, hereby orders that
an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 13th day of July 1999.