Form 1 NATIONAL ROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38233
Docket No. CL-38156
07-3-04-3-55
The Third Division consisted of the regular members and in addition Referee
Martin H. Malin when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(National Railroad Passenger Corporation (Amtrak
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Organization (GL-13020)
that:
Claim No. I
This constitutes a claim/grievance on behalf of Mr. Noval Jackson
headquartered in Denver, Colorado. If as a result of Amtrak's
current changes in management you are no longer the person to
respond to this claim/grievance, please forward this letter to the
appropriate person and advise the undersigned accordingly. As a
professional courtesy, I am also forwarding a copy of this claim to
the Divisional Manager of Labor Relations, Ms. V. J. Giulian.
1) Carrier violated Rules 5, 6 and 8 and other related rules of the
Agreement when they acted in a capricious, arbitrary and
discriminatory manner by the process in which they
furloughed Claimant. Claimant's treatment was disparate in
nature compared to former management employees similarly
situated who were allowed back into the craft and onto a Ticket
Clerk position for which they had no prior experience. On
February 27, and March 04, 2002, Claimant bid for twelve (12)
Ticket Clerk positions that were open for bid in Denver,
Colorado. The Carrier awarded the positions to employees
junior to Claimant which subsequently forced Claimant to an
unassigned status.
Form 1 Award No. 38233
Page 2 Docket No. CL-38156
07-3-04-3-55
2) Notwithstanding the above, the Carrier violated Article XI of
the September 06, 1991 Mediation Agreement by their failure
to hold a Ticket Clerk training class in Denver, Colorado since
the inception of the Rule.
3) Beginning with the date of the job awards (March 01, 2002)
and continuing until the Carrier places Claimant on one of the
positions of his choice that his seniority would allow, they shall
be required to compensate Claimant forty (40) hours per week
at the Ticket Clerk rate of $18.56 per hour including holiday
pay, vacation pay and sick days. This shall be ongoing liability
until this dispute is settled or this claim is honored.
4) The Carrier shall further be required to reimburse Claimant
for any out-of-pocket medical, dental or surgical expenses to
the extent that such payments would have been payable by the
current insurance provided by the Carrier under the terms of
the governing Agreement.
Claim No. 2
This constitutes a claim/grievance on behalf of Mr. Clifton Simms
headquartered in Denver, Colorado. If as a result of Amtrak's
current changes in management you are no longer the person to
respond to this claim/grievance, please forward this letter to the
appropriate person and advise the undersigned accordingly. As a
professional courtesy, I am also forwarding a copy of this claim to
the Divisional Manager of Labor Relations, Ms. V. 3. GiuIfan.
1) Carrier violated Rules 5, 6 and 8 and other related rules of the
Agreement when they acted in a capricious, arbitrary and
discriminatory manner by the process in which they
furloughed Claimant. Claimant's treatment was disparate in
nature compared to former management employees similarly
situated who were allowed back into the craft and onto a Ticket
Clerk position for which they had no prior experience. ®n
February 27, and March 04, 2002, Claimant bid for twelve (12)
Ticket Clerk positions that were open for bid in Denver,
Form 1 Award No. 38233
Page 3 Docket No. CL-38156
07 3-04-3-55
Colorado. The Carrier awarded the positions to employees
junior to Claimant which subsequently forced Claimant to an
unassigned status.
2) Notwithstanding the above, the Carrier violated Article XI of
the September 06, 1991 Mediation Agreement by their failure
to hold a Ticket Clerk training class in Denver, Colorado since
the inception of the Rule.
3) Beginning with the date of the job awards (March 01, 2002)
and continuing until the Carrier places Claimant on one of the
positions of his choice that his seniority would allow, they shall
be required to compensate Claimant forty (40) hours per week
at the Ticket Clerk rate of $18.56 per hour including holiday
pay, vacation pay and sick days. This shall be ongoing liability
until this dispute is settled or this claim is honored.
4) The Carrier shall further be required to reimburse Claimant
for any out-of-pocket medical, dental or surgical expenses to
the extent that such payments would have been payable by the
current insurance provided by the Carrier under the terms of
the governing Agreement.
Claim No. 3
This constitutes a claim/grievance on behalf of Mr. Frank Graham
headquartered in Denver, Colorado. If as a result of Amtrak's
current changes in management you are no longer the person to
respond to this claim/grievance, please forward this letter to the
appropriate person and advise the undersigned accordingly. As a
professional courtesy, I am also forwarding a copy of this claim to
the Divisional Manager of Labor Relations, Ms. V. J. Giulian.
1) Carrier violated Rules 5, 6 and 8 and other related rules of the
Agreement when they acted in a capricious, arbitrary and
discriminatory manner by the process in which they
furloughed Claimant. Claimant's treatment was disparate in
nature compared to former management employees similarly
Form 1 Award No. 38233
Page 4 Docket No. CL-38156
07-3-04-3-55
situated who were allowed back into the craft and onto a Ticket
Clerk position for which they had no prior experience. On
February 27, and March 04, 2002, Claimant bid for twelve (12)
Ticket Clerk positions that were open for bid in Denver,
Colorado. The Carrier awarded the positions to employees
junior to Claimant which subsequently forced Claimant to an
unassigned status.
2) Notwithstanding the above, the Carrier violated Article XI of
the September 06, 1991 Mediation Agreement by their failure
to hold a Ticket Clerk training class in Denver, Colorado since
the inception of the Rule.
3) Beginning with the date of the job awards (March 01, 2002)
and continuing until the Carrier places Claimant on one of the
positions of his choice that his seniority would allow, they shall
be required to compensate Claimant forty (40) hours per week
at the Ticket Clerk rate of $18.56 per hour including holiday
pay, vacation pay and sick days. This shall be ongoing liability
until this dispute is settled or this claim is honored.
4) The Carrier shall further be required to reimburse Claimant
for any out-of-pocket medical, dental or surgical expenses to
the extent that such payments would have been payable by the
current insurance provided by the Carrier under the terms of
the governing Agreement."
FINDINGS:
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.
Form I Award No. 38233
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This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
On February 20, 2002, the Carrier carried out a reduction-in-force by
abolishing all 29 clerical positions in Denver, Colorado. The abolished positions
included the full-time baggage person positions held by the Claimants. The Carrier
reorganized the work among 12 Ticket Clerk positions and bulletined them. The
Claimants bid on the positions, but were denied them in favor of employees with less
seniority.
The Organization launched a broad side attack. During handling on the
property, it argued that the Carrier improperly combined Baggage person and
Ticket Clerk jobs into a single position. The Carrier relies on Rule 1(d) which
provides:
"When a reduction in force occurs, the remaining work will be
covered by employees covered by this Agreement."
We agree that the Carrier complied with Rule 1(d). The Organization has
not cited any Agreement Rule that would otherwise control. Accordingly, we reject
the Organization argument
The Organization further argues that the Carrier violated Article XI of the
September 6, 1991 Mediation Agreement by its failure to hold a Ticket Clerk
training class in Denver, Colorado, since the inception of the Rule. Article XI of the
September 6, 1991 Mediation Agreement provides, in relevant part:
"(a)
Ticket Clerk Training
(1)
Corporate Agreement
Prior to the awarding of a ticket clerk position to a junior
unassigned employee trained after the date of this agreement,
Amtrak will offer ticket clerk training to senior regular
assigned employees at the location. Seniority will govern
among applicants having sufficient fitness and ability.
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Successful applicants for ticket clerk training will be paid the
rate of their former position while engaged in training, but no
more than the appropriate ticket clerk rate. Upon completion
of training, employees will be considered automatic bidders for
ticket clerk positions at their location and must remain on
ticket clerk positions for a one year period. Rule 8 will apply
from the date assigned the position. If extra boards are
established for ticket clerk positions, such ticket clerk positions
will be treated as regular assigned positions for the purpose of
this provision.
(3) Ticket clerk classes will be offered periodically at the following
locations, as indicated:
(f) semi-annually-New York, Washington, D.C. and Philadelphia;
(ii) annually-Los Angeles, Chicago and Boston.
Such classes may be canceled if there are less than five eligible
trainees or if manpower needs do not warrant additional training at
the time. Amtrak may offer centralized ticket clerk classes at other
locations consistent with this Article; notification to employees of
such classes will fulfill Amtrak's commitment to offer training to
senior regularly assigned employees contained in (a)(1) and (2)
above. Employees who successfully complete the training will be
considered automatic bidders for ticket clerk positions at their
location and will be required to remain on ticket clerk positions for
12 months. Amtrak will make a reasonable effort to release
employees for training. If employees are not released due to
requirements of service, they will be automatically considered for
the next available training."
On its face, Article XI only requires that ticket clerk training classes be
offered at New York, Washington, D.C., Philadelphia, Los Angeles, Chicago and
Boston. There is no requirement that such training classes be offered at Denver.
Accordingly, this portion of the Organization's attack must be rejected.
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The critical question before the Board concerns the interaction of Rules 5, 6
and 8. Rule 5 provides:
"Employees covered by these rules shall be in line for promotion.
Promotions, assignments and displacements under these rules shall
he based on seniority, fitness and ability; fitness and ability of
applicants being sufficient, seniority shall prevail.
NOTE: The word 'sufficient' is intended to more clearly
establish the prior right of the senior employee to bid in a new
position or vacancy where two or more employees have adequate
fitness sad ability.
The company shall be the judge of fitness and ability, but shall not
act in a capricious, arbitrary and discriminatory manner in the
application of this rule. Alleged violations of this obligation may he
appealed in accordance with Rule 25 (Grievances)."
Rule 6(b) provides:
"Bulletined positions will be awarded to the senior qualified bidder
within ten (10) calendar days following close of the advertising
period, and except when conditions beyond control of the
corporation prevent, notice of award will be posted where the
position was bulletined on the following Wednesday showing
position, date bulletined, the name of the employee awarded the
position, and the effective date of the award."
Rule 8 provides, in relevant part:
"(a) Employees awarded bulletined positions or exercising
displacement rights will be allowed thirty (30) calendar days in
which to qualify and failing to qualify may exercise seniority
under Rule 10. The thirty (30) calendar days may be extended
by agreement between the appropriate organization
representative and the proper corporation official.
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(b) When it is evident that an employee will not qualify for a
position, after conference with the District Chairman, he may
be removed from the position before the expiration of thirty
(30) calendar days and be permitted to exercise seniority under
Rule 10. The appropriate organization representative will be
notified in writing the reason for the disqualification.
(c) Employees will be given full cooperation of the department
heads and others in their efforts to qualify."
The Carrier argues that the Claimants were not qualified for the Ticket Clerk
positions. It contends that the Claimants previously forewent opportunities to seek
Ticket Clerk training. It further relies on Article III, Section 8 of the September 2,
1994 Mediation Agreement, which provides:
"An employee who has worked a regular assigned arrow ticket clerk
position for more than 30 days will be deemed to have sufficient
fitness and ability to exercise seniority to ticket clerk positions with
arrow requirements. Such employees will be subject to Rule 8
(Failure to Qualify) and Rule 2-A-5 (Time in which to qualify)."
On its face, Article 111, Section 8 provides a method of having sufficient
fatness and ability. It appears to apply regardless of how tong ago the employee
worked a regular assigned Ticket Clerk position. However, it does not purport to
specify the exclusive means of establishing sufficient fitness and ability.
Rule 8(a) provides that an employee awarded a bulletined position is allowed
thirty days in which to qualify. Rule 5's provision that seniority governs where
fitness and ability is adequate and Rule 6's provision for the award of the position to
the senior qualified bidder must be read together with Rule 8's allowance of 30 days
to qualify once the position is awarded.
Numerous Awards have interpreted comparable language of other
Agreements to the effect that fitness and ability do not require employees to be
immediately qualified to step in and perform the job, but rather that they have such
training, experience and character to raise a reasonable probability that they will be
able to perform all duties of the position within a reasonable time. See, e.g., Third
Division Awards 22357, 7847, 5348 and 3193. Rule 8 sets that reasonable time as 30
Form 1 Award No. 38233
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calendar days, with further provision to disqualify an employee earlier if it is
apparent that the employee will not qualify for the position.
The question whether an employee possesses sufficient fitness and ability
necessitates a fact-based inquiry that can only be conducted on a case-by-case basis.
In the instant case, the reasons the Carrier cited for not awarding the positions to
the Claimants were their not having worked the Ticket Clerk position in the past
and their not having taken advantage of prior opportunities to seek Ticket Clerk
training. However, the Carrier has provided no specific reason to believe that the
Claimants would be unable to perform the job within the 30-day qualifying period.
The Carrier did not explain why the formal training or prior experience was
necessary for these Claimants to have a reasonable probability of performing the
job within 30 calendar days. Indeed, the record reflects that beginning in May 2002,
the Interim Supervisor allowed the Claimants to post with existing Ticket Clerks
and allowed them time off to travel to Chicago, Illinois, to take a rail reservation
class, a class designed to upgrade the skills of existing Ticket Clerks to use the
Carrier's new reservations system. There is no evidence of any dissatisfaction with
their performance as Ticket Clerks. Apart from relying on a general view that
employees lacking prior Ticket Clerk experience or not having gone through the
formal Ticket Clerk training classes lacked sufficient fitness and ability, the Carrier
offered no reason to believe that the Claimants could not have performed the job
within the 30-day qualification period. We recognize that hindsight is always 20-20,
but given that beginning in May 2002 the Claimants were allowed to perform as
Ticket Clerks and apparently performed satisfactorily, calls ffor the Carrier to
provide specific reasons why it believed the Claimants did not have a reasonable
probability of performing the job within 30 days. Accordingly, we find that the
Carrier violated Rule 5 in awarding the positions to junior bidders. We emphasize
that our finding in confined to the particular record presented to us.
This case also raises questions of remedy. First, the claim seeks
reimbursement for out of pocket medical expenses. During handling on the
property and before the Board, the Carrier contended that the Agreement does not
provide for such a remedy. The Organization never responded to this contention
and failed to cite any authority for such a remedy. Accordingly, this aspect of the
claim will be denied.
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Second, as noted above, beginning in May 2002, the Claimants began working
as Ticket Clerks. Accordingly, any backpay awarded to the Claimants must be
offset by their actual earnings once they began working as Ticket Clerks.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 18th day of July 2007.