SPECIAL BOARD OF ADJUSTMENT NO. 605
PARTIES ) Brotherhood of Railway, Airline and Steamship Clerks,
TO ) Freight lIandlers, Express and Station Employes
DISPUTE ) and
Lehigh Valley Railroad Company
QUESTIONS
AT ISSUE: Organization's Questions:
(1) Did the Carrier violate the provisions of,the February 7,
1965 Agreement, when it notified Miss Alice Ahearn, that she
was no longer under the protective features of the February 7,
1965, Stabilization Agreement by reason of her failure to work
a position of extra clerk at Perth Amboy, N. J., due to extra
clerk Barbara Young going on vacation?
(2) Shall Carrier now be required to restore the protective
features of Miss Alice Ahearn in accordance with the February
7, 1965 Agreement she held prior to Carrier's action in this
case (plus subsequent general wage increases)?
(3) Shall Carrier now be required to correct claimant's protective rate which is $599.41, per month instead of protective
rate of $550.09 as stated by Carrier ?
Carrier's Question:
Did the Carrier violate the provisions of the February 7, 1965
Agreement when it notified Miss Alice Ahearn, that she was no
longer under the protective features of the February 7, 1965
Stabilization Agreement by reason of her consistent pattern of
declining calls for extra work?
OPINION
OF BOARD: On January 23, 1970, Claimant's position of telephone operator
was abolished. Thereafter, she exercised her seniority to the
position of Assistant Chief. Tariff Compiler and after a trial
period was disqualified. In due course, she was placed on the
extra list as a protected employee and was subject to call until her retirement
on December 11, 1970.
Involved herein is that portion of Article 11, Section 1, of the
February 7, 1965 Agreement, hereinafter quoted:
"A protected furloughed employee who fails to
respond to extra work when called shall cease to be
a protected employee."
The instant dispute presents a number of issues which require
comment. The first concerns the question of her protected rate. The Carrier
contends that it was $550.09 per month, whereas the organization argues that it
Award
No,
267
Case
No.
CL-50-E
should have been $599.41 per month. Why should it be necessary for us to decide
such an issue? The parties have under their control the records which would
reveal the protected rate to which she was entitled. We merely have a bald statement that they dispute the amount. If nothing else, the parties should be capable
of resolving this disagreement on the property.
The second issue is interrelated with the question of her availability when called. Without detailing the various times Claimant was called to
fill a vacancy in her seniority district, which the Carrier has cited in the
record, there is alleged a consistent pattern of refusal to respond. Implicit
in the organization's contention is the fact that Claimant was not qualified to
perform the required work, hence, she was not obligated to respond. Thus, in
this context, who has the cigtit to determine qualifications?
We would state the rule in its simplest form. Absent a provision
to the contrary, the Carrier has the unqualified right as part of its management
prerogatives to initially determine an employee's qualifications. Thus, where an
employee on the extra list is called to fill a vacancy in the seniority district,
that employee is required to accept such call--in the al;;ence of other contingencies. Thereafter, if that employee is found to be unqualified, the Carrier is
obligated to continue to pay the protective benefits. On the other hand, when a
protected employee is called from the extra list and declines, or is unavailable,
solely or, the ground that the employee is not qualified to perform the work, a
different aspect is presented.
Under these circumstances, a consistent refusal to respond to the
call will be deemed to demonstrate a pattern anc' result in a denial of protective
benefits.
In our view, the Carrier's records indicate a pattern of conduct
reflecting a refusal to accept calls. In Award
Nos.
16, 126, 182, 185, to name
only a few, our Board has denied protective benefits where there has been amply
demonstrated the existence of a consistent pattern. Therefore, it is our considered judgment that the Claim should be denied.
AWARD
1. The Organization's Questions at Issue are answered in the
negative, except Question (3), which is referred back to the property.
The Carrier's Question at issue is answered in the negative.
,MURRAY M. ROHMAN
Neutral Member
Dated: Washington, D. C.
October 27, 1971