BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES




          THE DETROIT AND TOLEDO SHORE LINE RAILROAD COMPANY


STATEMENT OF CLAIM:

 (1) Carrier violated the provisions of the effective Clerks' Agreement
 when it failed and refused to assign Clerk Thomas Dunn, the senior
 applicant to the bulletined positio-n of Keypunch Operator and, instead,
 assigned a new employe.

 (2) Carrier shall now be required to pay Clerk Thomas Dunn for eight
 (8) hours' pay at the pro rata rate of the position of Keypunch Operator,
 which is in addition to what he has already received as Train Clerk A,
 commencing Monday, January 3, 1966 and for five (5) days per week,
 Monday through Friday, thereafter that he is denied the right to fill
 the position of Keypunch Operator to which his seniority entitled him.

 JURISDICTION:

 The jurisdiction of this Board is set forth in its Award No. 1. The statement of jurisdiction therein is incorporated herein by reference thereto.

 OPINION OF BOARD:

 On June 28, 1965, Claimant was awarded the position of Train Clerk A. The bulletined duties of the position, inter alia, required operating a keypunch machine at the rate of 50 words per minute (wpm). It is not questioned that Claimant satisfactorally performed the duties of the position.

 On December 24, 1965, Carrier bulletined a new position of Keypunch Operator in its Data Processing Center. On the form of bulletin, prescribed by agreement of the parties, Carrier after "Brief Description of Duties" inserted:
 PL e )1q
                          Award No. 4

                          (Case No. 4) Page 2


      "Keypunch - Verify - Interpret tape for origin card flow.

      Applicant must be qualified and capable of typing at 60 wpm,

      and successfully t n test respectively before being

      Fs-signed to t e poassion. Emp asis supplied.?


Two employes, Claimant being senior, bid for the position. Carrier gave Claimant a keypunch typing test which it says, without contradiction, indicated Claimant had a proficiency of 30 wpm. On July 7, 1966, Carrier awarded the position to a new employee. The record contains no evidence as to how Carrier assessed the keypunch typing proficiency of the new employe.

 Carrier's sole given reason for not awarding the Keypunch Operator . position to Claimant was that the test showed that he was not qualified to type at 60 wpm.

                        I. THE ISSUES


      1. Does the record show that because Claimant had satisfactorally

performed the duties of the position Train Clerk A, for about 7 months,
 with bulletined requirement of keypunch typing at 50 wpm, that he had
 reasonable fitness and ability to learn and perform keypunch typing at
 the rate of 60 wpm prescribed in the bulletined duties of the Keypunch
 Operator position; and,

 2. Did Carrier, under the circumstances prevailing, have the right to subject Claimant to a test with the expressed objective of determining whether his immediate keypunch typing proficiency was at least 60 wpm?

                  II. CONTENTIONS OF THE PARTIES


                          1. Clerks'


Clerks contend that since Claimant had satisfactorally performed the duties of the Train Clerk A position, with a keypunch typing requirement of 50 wpm, this constituted a prima facie reasonable ability to learn and perform at the rate of 60 wpm;

 Rule 9 of the Agreement contractually obligated Carrier to award the Keypunch Operator position to the senior employe bidder having reasonable fitness and ability as defined in the Rule;
                                                  PI-a r i9


                          Award No. 4

                          (Case No. 4) Page 3


Under Rule 9 of the Agreement Carrier could not require, as a condition precedent to award of the position, that the senior employe bidder having reasonable fitness and ability have an immediate proficiency of keypunch typing at the rate of 60 wpm;

 The only test as to qualifications to which the senior bidder having reasonable fitness and ability may be contractually subjected is that prescribed in Rule 17 of the Agreement.

                        2. Carrier's


It is the prerogative of management, in the absence of a contractual bar to: (a) define the duties of a position; (b) determine the qualifications of a bidder to perform the duties; and (c) subject bidders to test of qualifications of such design as it may unilaterally choose: provided, this is not accomplished in an arbitrary or capricious manner and absent intent to avoid or evade the compulsions of the Agreement.

                      III. RESOLUTION


In our Award No. 2 (Case No. 2) we interpreted Rules 9 and 17 of the Agreement. That Award is incorporated herein by reference thereto. In that Award we held that when there is a showing that the senior bidder has reasonable fitness and ability to learn and perform the duties of the position involved Carrier is contractually obligated to award the position to the senior bidder. Note, the words "to learn and perform" can only mean in futuro. This destroys Carrier's contention that the senior bidder must be fully qualified to perform the duties of the position as of the time award of the position is made. The "in futuro" is a limited period prescribed in the Agreement as follows:

                          "RULE 17"


                      "Qualifying Time"


      "(a) An employe entitled to a bulletined position will be

      allowed thirty working days in which to qualify. Should

      he fail to qualify, he shall retain all of his seniority

      rights and may bid on any position subsequently bulletined,

      but may not displace any regularly assigned employe."

                                                  PLO J19


                              Award No. 4

                              (Case No. 4) Page 4


    We find that the Agreement binds Carrier, unequivocally, to award a bulletined position to the senior bidder having reasonable fitness and ability to learn and perform the duties of the position. when there is a showing that the senior bidder has reasonable fitness and ability, as defined in Rule 9, Carrier is contractually barred from prescribing the passing of any other test relative to qualifications. This contractual test for qualification is the ex post facto one, following assignment to the position, agreed to by the parties in Rule 17.


    In the absence of any bidder for a position having reasonable fitness and ability, as prescribed in Rule 9, Carrier is free to subject employe applicants to test for aptitude or seek a new employe in the manpower market.


    The issue in this case narrows as to whether Claimant had.reasonable fitness and ability to learn and perform the duties of the Keypunch Operator position under proper supervision and direction.


In its Submission in Case No. 3, in which we issued our Award No. 3, Carrier admitted the "duties" of the Keypunch Operator and Train Clerk positions "are similar." The Carrier failed to award the Keypunch Operator position here involved to Claimant for the reason he failed to demonstrate, in a test to which it subjected him, an immediate proficiency in keypunch typing of 60 wpm. Yet, by silence, if not by expressed admission, it concedes that he satisfactorally filled the position of Train Clerk A which required a keypunch typing proficiency of 50 wpm. ,~We find it to be a reasonable presumption that an employe who has demonstrated fitness and ability to type keypunch at the rate of -E' 50 wpm. ~s the potential to learn to do such typing at the rate of 60 wpm. The presumption may be rebutted only in compliance with Rule 17. We, therefore, will sustain paragraph 1 of the Claim.

        As to the compensation prayed for in paragraph 2 of the Claim; we

    shall sustain it only to the extent of the make whole principle

    established in labor law. That is to say, we will award that Carrier

    pay Claimant that amount which he would have earned absent carrier's -

    violation of the Agreement less what he actually earned during the

    period set forth in said paragraph.,~·

                                                PL B Award No. 4

                          (Case No. 4) Page 5


FINDINGS:

 Public Law Board No. 119, upon the whole record and all the evidence, finds and holds:

          1. That Carrier and Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;


          2. That this Board has jurisdiction over the dispute involved herein; and,


      3. That Carrier violated the Agreement.


                          AWARD


      Paragraph 1 of Claim sustained. Paragraph 2 of Claim sustained to extent setforth in opinion.


                          ORDER


Carrier is hereby ordered to make effective Award No. 4 supra, made by Public Law Board No. 119, on or before

                  J

                  Q4 hfl H. Dorsey, Chairman

                  Neutral Member


D. G. Vane, Carrier Member C. E. Kief, E p ye Member

                                                J


Dated at Chicago, Illinois, this ~7 day of 1968.
                      BEFORE AWARD 1`10. 4

                      PUBLIC LAST BOARD N0. 119 - (Case No. 4)


BROTHERHOOD OF RAILWAY, AIRLINE AND STEA:3SHIP CLERKS,

FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES


                                and


            THE DETROIT AND TOLEDO SHORE LINE RAILROAD CO:LPANY


MOTION TO WITHDRAW

PETITION FOR r:TERPPE^ATIOZI


Under date of Aril 19, 1968, Carrier fiiad aetition for interpretation o? this award. Copy of the petition is attached hereto and made part hereof.

 During hearing, by agreement of the parties, Carrier moved to withdraw its petition =or interpretation of t:is ;.card.

                          Motion GRANTED.


                      1_; t , , ~-01 ~L ~~,

                      John H. Dorsey, Chairman

                      I Neutral _?ember


D. G. Vane, Carrier :!ember CAE. Kief, ,~ EmDoye He:^ber ,
 Dated at Chicago, Illinois, this ~~',day of , 1968.