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 herein.
On March 29, 1995, the Carrier advertised a Rank B Traveling Mechanic position, with the following requirements:
The Claimant was awarded the position on April 12, 1995, with a designated report date of April 24, 1995.
On April 21, 1995, Work Equipment Supervisor D. A. Brady interviewed the Claimant and asked the Claimant several questions concerning the Claimant's knowledge of electrical, hydraulic and pneumatic schematics. According to the Carrier, the Claimant's responses to Brady's questions showed that the Claimant had very little working knowledge about schematics. Brady then required the Claimant to perform various types of welds. According to the Carrier, the Claimant lacked requisite welding skills.
By letter dated April 24, 1995, Work Equipment Supervisor Brady advised the Claimant that "[elffective immediately" the Claimant was disqualified from the Rank B Traveling Mechanic's position because "[y]ou have failed to satisfactory [sicl demonstrate sufficient welding skills and skills in reading and understanding schematics diagrams to effectively diagnosis [sic] equipment problems and make adequate equipment repairs." Form 1 Award No. 36562
An Unjust Treatment Hearing was requested and held, which resulted in a determination dated May 30, 1995 that the Claimant did not demonstrate that he was unjustly disqualified. This claim followed.
Thus, great deference must be given to a carrier's determination that an employee is not qualified to perform the duties of a position.
However, notwithstanding the Carrier's latitude to make determinations concerning qualifications, Rule 23(A) is clear - "[eImployes will be given reasonable opportunity in their seniority order to qualify for such work . . . ." The Claimant was given no opportunity to qualify for the Traveling Mechanic's position. The Claimant was awarded the position on April 12 with an April 24,1995 report date. The Claimant was then given a "pre-test" on April 21, 1995 by Work Equipment Supervisor Brady, who determined prior to the Claimant's report date that the Claimant was not qualified for the position. The Claimant was notified that he was disqualified before he was ". . . given reasonable opportunity . . . to qualify. . . ." While great deference must be given to the Carrier's determinations concerning qualifications, the Rule requires that the Claimant be ". . . given a reasonable opportunity. . , to qualify. . . ." The Claimant was not given that opportunity. Form 1 Award No. 36562
This is not a case where the record clearly shows that the employee could never qualify for the position had he been given a reasonable opportunity to do so. While perhaps not possessing all of the skills necessary to do the job prior to commencement of his duties, the record does show that the Claimant was a long time Machine Operator; he performed periodic maintenance on the Carrier's equipment; he observed other Mechanics perform maintenance on equipment; and he had some welding skills. Perhaps after a reasonable period of time, the Claimant would not have been able to demonstrate that he had sufficient skills to perform the job. However, the point here is that Rule 23(A) clearly requires that the Claimant at least ". . . be given reasonable opportunity . . . to qualify. . . ." The Claimant was not afforded that opportunity. In this case, under these facts, we find that it was arbitrary for the Carrier to not give the Claimant that required opportunity. The Carrier therefore violated Rule 23(A).
Awards cited by the Carrier do not change the result. Third Division Awards 33050, 35408, 35808, 35917 and 35991 involved situations where the employees were disqualified after being given some opportunity to demonstrate qualifications in the position. The Claimant was given no such reasonable opportunity, even though Rule 23(A) requires that he be given that opportunity. Another line of Awards cited by the Carrier addresses the ability of a carrier to determine that an employee needs a specific license to perform a job and disqualifies an employee due to lack or loss of a license. See Third Division Awards 32152, 33913, 35561. The Claimant was not disqualified for those reasons.
We do not know if, given a reasonable opportunity, the Claimant would have been able to demonstrate his qualifications for the Rank B Traveling Mechanic position. Therefore, as a remedy, we shall require - as Rule 23(A) clearly requires - that the Claimant ". . . be given reasonable opportunity . . . to qualify . . ." for the Rank B Traveling Mechanic position. Should the Claimant demonstrate those qualifications after being given such reasonable opportunity, the Claimant shall be given the appropriate seniority and made whole. The Board will retain jurisdiction in the event disputes arise concerning the remedy.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) 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.
Carrier Members Dissent
To Award No. 36562 (MW-34252)
Referee Edwin H. Benn
The Board's Award seems to be based on the erroneous assumption that the qualification period under Rule 23 is some kind of training period. It is not. The parties have no agreement requiring the Carrier to provide apprenticeships or training programs; instead, Rule 23 requires the employee to prove that he/she possesses the ability to handle the job.
Technical jobs, such as Traveling Mechanic, require the employee to bring to the job certain minimum technical qualifications that generally cannot be acquired in the scant maximum of 30 calendar days provided in Rule 23. Those skills are acquired by employees in advance, on their own, from previous job experience, college courses, or any classes that the Carrier may offer. But the period provided by Rule 23 is for demonstrating their ability, not for acquiring it.
Rule 23 speaks only of a "reasonable opportunity." What is a reasonable opportunity is case specific, and depends on innumerable variables: complexity of the particular job, available hands-on time for the employee to actually perform the work, availability of a supervisor to observe the employee long enough to reach an informed opinion as to the employees competence, etc. Such variables are one reason why, as the Board has noted in this Award: "[G]reat deference must be given to a Carrier's determination that an employee is not qualified to the duties of a position." (Award p. 3).
In this case, the Claimant was, in fact, given a reasonable opportunity. He was given tasks to perform that involve the core skills of the Traveling Mechanic position. And in each of these skills - which involved the ability to understand electrical, hydraulic, and pneumatic schematics and to perform welding - the Claimant was found to perform unsatisfactorily. Claimant admitted that it would take him more than 30 days to attempt to qualify.
The only reason the Board offers for its decision that the Carrier was "arbitrary" in its disqualification, is that these tests of the Claimant occurred before he reported to the position in question. But there is no requirement in Rule 23 that the employee must report to the job site before he demonstrates his proficiency; there is absolutely no contractual bar to the Carrier's testing the Claimant prior to his reporting for duty, thereby avoiding the waste of time and risk to expensive equipment entailed in sending to the field an employee who lacks even the basic technical knowledge required to function on the job.
case, there is no dispute that the Carrier did publish the requirements for certain welding ability and for schematics comprehension. Such is cited at page 2 of the Award.
That precedent has been supported in such later on-property NRAB decisions as Third Division Award 32880, which held that Rule 23 did not require the Carrier to allow the employee to qualify on-the-job, where the Carrier required employees to pass a welding course as a prerequisite to assignment to welder positions, and the claimant had not done so.
Likewise, in Award 35408, the Third Division reaffirmed precedent on the issue of prequalification examination, in a case that is remarkably similar to the instant dispute. That claimant, who had served as a Machine Operator for 21 years, was disqualified from a Traveling Mechanic position without an opportunity to actually perform on the job. When the claimant reported for work, his supervisor, after deciding that the Claimant's background indicated inadequate technical experience, administered an oral exam on interpreting schematics, which the Claimant flunked; so the supervisor decided that the Claimant was not fit to assign to work in the field and therefore disqualifed him. Once again the Organization relied on Rule 23 and argued that the Claimant was not given on-the-job time in which to qualify. But the Third Division rejected the claim, noting:
As other Boards have acknowledged, qualifcation testing prior to assignment in the field, is not inconsistent with Rule 23. The fairness of the examination itself is not really in dispute in this case; nowhere has the Organization suggested that comprehending schematics and welding skills are not core competencies required of a qualified Mechanic. Rather, the Organization was only arguing that the Claimant must be placed into the feld for the testing period. But there is no contractual requirement that the employee be sent out into the field, and risk holding up production as he is discovered to be incompetent at the job of repairing large, expensive pieces of equipment that are key to maintaining production. It is the Organization, not the Carrier, who is being arbitrary here.
The Carrier's position that prior examination is a valid alternative to in-the-field proficiency demonstrations is also supported by innumerable arbitration awards on other railroads having rules similar to Rule 23; see for example, Third Division Awards 29863, 30203, 30531.
As found in many previous Awards, the 30-day period provided in Rule 23 applies to a time period for the employee to demonstrate accommodation to the particular job. Rule 23 Carrier Members Dissent
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENTING OPINION
TO
AWARD 36562. DOCKET MW-34252
{Referee Benn}
The Majority was correct in its ruling in Award 36562 and nothing present in the Carrier's dissent distracts from the correctness and precedential value of this award.
The Minority begins its dissent by asserting that the Board depicted Rule 23 as a training period. Apparently, the Carrier is attempting to cloud the real issue that was decided by the Board, i.e., a reasonable opportunity to qualify. It is crystal clear that the Claimant was not given a reasonable opportunity. The facts of the record show that the Claimant was awarded the position on April 12, 1995 with a report date of April 24, 1995. After an "interview" by the work equipment supervisor, the Claimant was notifed on April 24, 1995 that he was disqualified. It was not a difficult task to conclude that the Claimant was not given a reasonable opportunity to qualify for the position.
Next, the Minority misconstrues the precedent of Award ? of Public Law Board (PLB) No. 3460. The findings of PLB No. 3460 ultimately held:
Clearly, the Board held in the above-cited award that the Carrier has the right to set requirements for a position; however, it must apply its policy in an equitable manner and in ac- Labor Member's Response To