The issue raised in this case is whether the Carrier violated various Rules of the Agreement (1, 2, 4, 55 and 58) by assigning a Lineman who had never passed the prequalification Gang Foreman test to fill a temporary vacation absence in the Gang Foreman classification within the same gang at the straight time rate rather than utilizing the Claimant, a senior qualified Gang Foreman working at a different location on overtime.
At the time in dispute, the Claimant was filling a temporary vacancy as an E.T. Gang Foreman in Construction Gang, J-122, working 7:00 A.M. to 3:00 P.M. Monday through Friday at Wayne, Pennsylvania. J. Greco owned a regular Lineman/HRO position in Maintenance Gang D-043, working 11:00 P.M.. to 7:00 A.M. Sunday through Thursday at Wilmington, Delaware. This claim protests his being upgraded to the Gang Foreman vacation absence at that location (normally held by John Brady) from December 14 through 23,1998. The record reflects that Greco was asked by his Foreman to help out and he agreed, although he had many opportunities in the past to take the gang Foreman's qualification test but decided not to because he did not want to work in that position. Greco worked the Gang Foreman position at his straight time rate. The Claimant held seniority on the Gang Foreman roster and regularly performed that work. On August 23,1999 the Claimant was assigned by the Carrier to work as a Gang Foreman on consecutive shifts at different locations. Between February 21 and April 23, 1999, when Gang Foreman Brady was awarded a daylight position, he was asked to work his vacated position on the last trick on an overtime basis despite the presence of Greco as a Lineman on the same gang.
The Organization argues that the Carrier failed to fill the vacation absence in issue with the proper qualified and rostered employee. It notes that Greco possesses no seniority in the Gang Foreman classification, and never demonstrated his skill and ability to perform the work by passing the pre-qualification test established by the Carrier for that classification. The Organization contends that the Carrier cannot require employees to meet the qualification standard for purposes of bidding or being awarded a posted position, but change the qualification when it wishes to assign employees to fill a temporary vacancy in that same classification. It asserts that Rule 1 requires the assignment of qualified employees to positions in order of seniority, Rule 2 requires the Carrier to administer job related tests to ascertain initial qualifications in a uniform manner, Rule 4 states that senior qualified employees on the roster involved will be given preference for the filling of temporary vacancies, Rule 55 gives preference for overtime work to employees who ordinarily perform the work, and Rule Form 1 Award No. 36233
58 permits the Carrier to assign an employee to different classes of work within the range of his or her ability.
The Organization argues that the Carrier, having chosen to test to establish qualifications for the Gang Foreman classification, must determine the range of an employee's ability in this fashion, and to permit it to do so in any other discretionary fashion is arbitrary and violates the seniority rights of employees with established qualifications in that classification. It notes that the Carrier recognized this fact when it paid Gang Foreman Brady extensive overtime to 1-ill the position created by his own award to a different trick, despite Greco being present on that gang. The Organization queries why the Carrier would not have used Greco at straight time if the Agreement enabled it to do so. It also contends that the Carrier has permitted employees to fill consecutive vacancies at different locations without raising a claim of unavailability, as it has done in this case. The Organization relies upon Third Division Awards 29712, 28723,19432,11279 and Forth Division Award 4895 in support of its assertion that the claim must be sustained.
The Carrier contends that there is nothing in the Agreement that requires it to utilize an employee to fill a temporary vacancy on overtime when the work in question can be performed at straight time, as it was in this case, citing Third Division Award 31003. The Carrier avers that the Claimant expressed no interest in filling the disputed vacancy under Rule 4 (in fact he was filling another at the time) and only wished to do so on an overtime basis. The Carrier also asserts that the Claimant was not available under either the provisions of Rule 4 or 55, because his regular tour began at 7:00 A.M. some 30 miles distant from the location where the temporary vacancy occurred, with an ending time of 7:00 A.M., citing Third Division Award 28100. It notes that having once assigned the Claimant to a different location on a consecutive shift to meet the needs of the operation when no other employee was available, does not give the Claimant the demand right to such work.
The Carrier argues that determinations as to qualifications are made by management. It contends that, while the preferred method is to have a qualification test on file for the bulletin and assignment process, the absence of such a test does not prohibit the use of an employee to perform work within the range of his or her ability. The Carrier asserts that supervisors who knew Greco's work determined that the vacant position was within the range of his ability, and made the straight time upgraded assignment under Rule 58. The Carrier also notes that the claim is excessive, Form 1 Award No. 36233
because on this property the appropriate remedy for an overtime violation is the straight time rate, citing Public Law Board No. 4549, Award 1; Third Division Awards 27701, 28181, 28189 and 28349.
A careful review of the record convinces the Board that, under the specific facts of this case, the Organization has proven that the Carrier violated Rules 2 and 4 by assigning Greco to the Gang Foreman position during the claim period. There is no doubt that the Carrier need not assign an employee at the overtime rate when a qualified employee is available to be temporarily upgraded to perform the disputed work at the straight time rate. Third Division Award 31003. In this case no overtime was worked. However, the Carrier has designed a specific pre-qualification test to establish an employee's qualification to bid on, and receive, a Gang Foreman position. Rule 2 permits the Organization the right to assure that the application of such test is uniform to all employees. In this case, Greco had the opportunity to take this test and establish his qualifications for the Gang Foreman position, and had been requested to do so in the past, but declined, specifically stating that he had no desire to work in that position or fill this temporary vacancy. Under such circumstances, the Board finds that it was arbitrary for management to conclude that such position was within the range of Greco's abilities and to assign him to it under Rule 58 when there were qualified employees on that roster who could have performed the work, albeit on overtime. Because the Carrier has used the Claimant on consecutive shifts at different locations on other occasions, it cannot be held that he was, per se, unavailable for this job assignment.
With respect to the appropriate remedy, it has been established on this property that the payment of claims for lost overtime opportunities is at the straight time rate. Public Law Board No. 4549, Award 1; Third Division Awards 27701, 28180, 28349. Accordingly, the claim is sustained at the pro rata rate.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.