The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
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.
The Claimant to this dispute, formerly a Passenger Movement Clerk, was attempting to exercise his seniority to a Clerk-Typist position in Carrier's Police Department at 30th Street Station, Philadelphia, Pennsylvania, when the dispute arose. He is covered under the provisions of the parties' Northeast Corridor Clerical Agreement.
After being displaced off of an Accounting Clerk position the Claimant was required to exercise a displacement right to maintain his employment with the Carrier. On April 12, 2001, he attempted to exercise his seniority to displace onto position of Clerk-Typist in the Police Department. The job description for the Clerk-Typist position (2POLCT-2) reads as follows:
The Carrier denied the Claimant's displacement right to the Clerk-Typist position, asserting that he was not a fully qualified employee for the position (because he had not been trained and qualified on the AS400 computer system and had not passed a background check) and that he would be displacing a junior qualified employee. In response the Organization points to a January 3, 1996 Agreement establishing three police data entry positions where Carrier agreed to provide training on the computer system and did not require knowledge of the system. In addition, it cites Rule 2-A-5 which reads as follows:
The Organization contends that this Rule provides 30 days for an employee exercising displacement rights to qualify for that position.
The Organization filed this claim on behalf of the Claimant which was denied by the Carrier. By letter dated September 14, 2001, the General Chairman progressed the dispute to the Director, Labor Relations. The claim was denied by the Carrier on November 29, 2001. The dispute was then referred to the Board.
The Organization argues that Rule 2-A-5 provides 30 days for an employee exercising displacement rights to qualify for the position and that there is no Rule that requires an employee to be fully qualified for a position prior to an election to Form 1 Award No. 36893
displace. It contends that, at the time of displacement, the senior displacing employee only needs to possess adequate "fitness and ability" for the position, in accordance with Rule 1-B-1.
The Organization further argues that Third Division Award 34067, cited by the Carrier, is not applicable to the instant case, since it involved a situation not at issue (in that case, the Claimant admitted he had no knowledge of the computer system and software programs). In addition, the Organization contends that the Majority, in Award 34067, "went too far" when it, in essence, nullified a Rule similar to Rule 2-A-5, and rendered employees subject to the "whim and fancy" of the Carrier. It argues that Award 34067 completely ignores employees' rights when exercising their displacement rights and does not comport with the applicable Rules of the Agreement and other Third Division Awards.
Finally, the Organization argues that the Claimant was never asked by the Carrier to prove his "fitness and ability" for the Clerk-Typist position. It contends that paragraph (c) of Rule 2-A-5, which requires that employees "be given full cooperation of the department heads and others in their effort to qualify," gives an employee having "fitness and ability" for a position assistance to qualify for an assignment. Further, it contends that paragraph (d) of Rule 3-C-1 permits the Carrier to allow a displacing employee to assume the position and retain the junior incumbent on the position to assist in qualifying the senior employee. It argues that the Carrier's failure to grant the Claimant his displacement right is because there may be a slight disruption in the department's operations. The Organization urges that the claim be sustained.
The Carrier argues that it has the managerial right to determine whether or not an employee is qualified for a particular position. Citing precedent it contends that the Claimant lacked the requisite fitness and ability to fulfill the functions of the position he sought. In addition, the Carrier argues that the Agreement does not require it to allow a senior employee to displace a junior qualified employee and then train the senior employee for the desired position.
The Carrier further argues that Rule 2-A-5 provides an employee 30 days in which to qualify once the employee has been awarded a bulletined position or permitted an exercise of seniority to a particular position, but does not provide an employee with 30 days to be trained. Citing precedent it contends the 30 days to Form 1 Award No. 36893
qualify has no application unless or until an employee is awarded or permitted to displace on a position.
The Carrier further argues that the Organization failed to meet its burden of proof in establishing a violation and that "mere assertions" are not proof. Citing authority, the Carrier contends that, because the Organization has not submitted any proof that violation occurred with respect to the claim, it must be denied.
Finally, the Carrier argues that the Organization has not shown that the Claimant suffered any loss in earnings because he was not allowed to exercise seniority to the involved position. It notes that, in fact, the Claimant exercised his seniority to another position and is making more money than he would be making working the Clerk-Typist position that is the subject of this dispute. The Carrier urges that the claim be denied.
The Board is persuaded that the claim on behalf of the Claimant must be sustained. The evidence establishes that the Claimant was prevented from exercising his displacement right to the Clerk-Typist position. The Carrier's view was clearly stated in its letter of November 29, 2001, denying the claim:
In short, the Carrier contends that the Claimant lacked the requisite fitness and ability because he was not fully qualified for the position. However, the literal language of Rule 2-A-5 of the Agreement does not read the way the Carrier wishes. It is clear that employees need not be fully qualified before they may exercise their displacement rights: "Employees . . . exercising displacement rights will be allowed thirty (30) days in which to qualify . . . ." During the 30-day period, in accordance with paragraph (c) of Rule 2-A-5, the employer must, at a minimum, demonstrate Form 1 Award No. 36893
the equipment, provide training manuals, and answer questions from the displacing employee while he attempts to qualify for the position.
The Board recognizes that, having eventually exercised his displacement rights to what may actually be a higher rated position (in which case he may not be entitled to additional money), the Claimant may no longer wish to pursue the Police Data Entry position. In addition, the Board recognizes that, as suggested by the December 26, 1995 Agreement establishing these data entry positions, this particular Clerk-Typist function may be complicated. The Claimant may fail to qualify within 30 days. However, the parties did not modify their Agreement, nor did they create a special exemption in order to account for the complicated nature of this position. Rule 2-A-5 of the Agreement requires the Board, if the Claimant still desires, to give him an opportunity to exercise his displacement rights.
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.