Award No. 13,' Case No. 13'


Parties: Brotherhood of Railway and Airline Clerks
 and

Statement of Claims "Claim of the System Committee of the Brotherhood





                  Friday, :.:ay 2, 1975, the claimant returned from a leave of absence. Tuesday, Nay -6, 1975, Robert Boyd, the claimant. Roster #1837, attempted to displace Angela sIIalker,

                  Roster W'1912, from clerical position Symbol,

                  #AB-287 which i:as awarded to "his.junicr em

                  ployee October 16, 15.74, while t::e claimant

                  was still on his leave of absence. -

                  Robert Boyd, by virtue of the fact that he -

                  hheld and still holds an Auxiliary Clerk

                  position in the same department and has

,' been reouired on several occasions to cover
                  position :au3-287 in the past, was qualified,

                  and senior to the incumbent, Angela :`alker,

                  and should have been permitted to displace

                  her.


                  (b) Claim is filed in behalf of Robert Boyd for one (1) day's pay co;.;mencing Tuesday, Nay 6,

                  1975, and continuing every work day there- ..

                  '. after until adjusted or corrected as a penalty :.hen the Carrier violated the Clerical Agreement.


            ' (c) This claim is filed in accordance with Rule

            7-B-1, ,and should be allowed."

·, .~ Award No. 13
      :pL6 2035 Case 330. 33


        Discussions Rules 2-A-7 and 1-B-1 have been cited by the parties

        are being relevant to this dispute. They state in their relevant parts:

        "Rule 2-A-7 - Returning from Leave of Absence


                      An employee returning to duty after leave of absence, sickness, vacation, disability or suspension, shall either return to his former posit=on, if available to him, or shall select any position bulletined during his absence which was a,:arded to a junior employee. If such employee elects to return to his former position,.he may, within seven calendar days thereafter, select any position bulletined during his absence which was awarded to a junior employee. .<."'


                      °'Rule 1-B-1 - Qualifications for Bulletined

' 'Positions or Vacancies.

                      '(a) Employes covered by these rules shall b in line for promotion. Promotion, assignment, and displacement shall be based on seniority, fitness and ability being sufficient, seniority shall pr e-:aii .


                          NOTE: The word 'sufficient' is

                          intended to more clearly

                          establish the right of the -

                          senior employe to the posi

                          tion or vacancy .There two

                          or more employes have adequate

                          fitness or ability.


                                (b) Where the words 'qualified employe'

                . is used in this Agreement, they shell mean

                    that an employe has 'sufficient fitness and.

                    ability' as those terms are defined in par-G

                    ' g:aph (a) above."


                .' The operative facts are that the Claimant held posi-

        tion S-89 .in the Accounts Receivable Section of the Customer Accounting

        Center from Kay 1, 1974 to September 10, 1974. .On September 11. 1974,

        he was granted'a leave of absence until Yay 2, 1975. Upon his return he

        occupied his former position.,

        .. On pay 6, 1975, the Claimant attempted' to displace a junior employee who was the incumbent of Clerical position AB-287 in

r Award No. 13
 d 2 03 5 Case No. 13
 :3_
 the Accounts Receivable Section, Customer Accounting Center. Management
 did not allow him to make this displacement.
 Organization°s Position
 The Organization stated the Claimant had a right
 under Rule 1-B-1 to exercise his seniority to a position which was
 advertised during his leave of absence. It added that the Claimant's past
 work experience qualified him for the position and the Carrier has no valid
 basis to deny him his displacement right because a supervisor determined
 during an interview that the Claimant was unable to demonstrate his fitness
 and ability for the position in question.
 The Organization cited and described the several
 clerical positions the Claimant had corked at his work location from
 October 1970 to September 1974. The Organization maintained that the
 Claimant by working these-several clerical positions in the Customer
 Accounting Center acquired an extensive working Imowledge which -could en
 able him to qualify for any position in this Department, were he given the
 possibility, . .
 The Organization noted that the duties of Position.
 AB-287 were part of the primary duties of Positions C-2 and AB-212-B
 prior to March 11, 1974 and that Auxilliary positions S-89 and AB-217 were
 expected to fill vacancies or assist on all positions,in the Department,
 including AB-287 . . . . ,_
    The Organization stated the Carrier -..as in error ::hen its supervisor stated its records revealed that the Claimant previously not performed the duties of AB-287.

    The Organization stated that the manner in which the Claimant's qualifications for the job were determined to beinsufficient,

. . . Award. rio. 13
 .` ~L(~ 2035 Case No . 13

      is.questionable. The Claimant was not given any test, but just subjected to an interview by his supervisor. The record does not disclose the nature of the interview, and the 0=-ganization maintains that the "interview" eras not an objective means to evaluate the Claimant's qualifications, but rather was a subterfuge to retain a junior employee in a position to which the Claimant wanted to displace.

      The Organization stressed that the supervisor who Interviewed the Claimant and found him not qualified has been a supervisor at the work location since the Claimant started to work there, and on several occasions had been the immediate supervisor. This supervisor knew full well the Claimant's previous work experience, and there ::as no need for an interview to determine the Claimant's work qualifications. It was completely uncalled for and it is totally lacking in any probative value to determine the Claimant's fitness and ability.

      The Crrpnization stated that the Carrier's reliance on Rule 1-B-1 to justify their actions is ludicrous. The Claimant had demonstrated his sufficient fitness and ability during his entire career Nith the Carrier, and therefore his seniority should have prevailed. The fitness and ability of the Claimant does not mean that he must be able to step in and perform the duties of the job without guidance or assistance. The Organization stated the employee must have the potential to perform all the duties in a reasonable time. It added that since the Claimant had demonstrated his .fitness and ability while performing other assignments at the Center, it is reasonable to assume that he could have performed the duties of AB-287 within a reasonable time. The Organization stressed that the Carrier has not met its burrden of proof to shoe that the Claimant could not perform the duties of the job.'

' - Award No. 13
 .~ PL(3 Zfl35
                                                  Case No. 13


                              ®.5


                          Carrier's Position

      The Carrier stated the claim lacks merit cause it is well established by Board awards that the matter of determining an


      employee's qualifications to perform a job is a management prerogative,'

      and the Board ;rill not substitute its judgment for that of Management as

      long as Management has not exercised its authority in arbitrary or

      unreasonable manner. Moreover, the Organization has the burdenof proof

      to show that the Carrier acted in an arbitrary. or unreasonable manner.

      `ihe Carrier stated the Organization has not met its

      burden of proof to show that the Carrier acted arbitrarily in this case.

      it added Rule 2-A-7 does not give an employee a dekand right to select

      any position irrespectiveof qualifications. All that this Rule does is

      to'provide the employee with the saae opportunity as if he had not been

      absent. It does not act as a waiver of any requirements of qualifications

      that would other::ise be required of the Claimant. The Carrier further

      stated Rule 1-B-1(a) gives it right to insist upon. an employee baino

      qualified before being permitted to exercise his displacement rights.

      . The Carrier stated the Organization has alleged, but

      has not proved, that the Claimant possessed the necessary qualifications

      for the job. The Carrier added that the Organization makes much of the.

      Claimant's prior work record, but that revie:r does not demonstrate the

      Claimant's competence to perform the work. All that the Organization's

      evidence does is create the suspicion of a presumption, which is a clear

      acknowledgement of the Claimant's lack of qualifications. The Organization

      asserts that the Claimant should have teen given an opportunity to qualify.

      The Carrier stated that this side steps the core issue, namely, whether

                                                  Award No. 13

      903 2035 -.

                                                  Case No. 13


      . _6_


        the Claimant was qualified to hold the position on May 6, 1975. The Carrier states the Claimant was not qualified, and the Organization has not refuted that contention. '

        The Carrier stated that when the Claimant's prior work experience is analyzed, none of the positions worked by the Claimant, except for the six-month period between March - September 1971, were positions that involved handling txinking.operations or customer financial charges. The Organization was not able to point to any job that the Claimant performed that had identical duties to Position P.B-237. The Carrier further stated that Position AB-287 was transferred from the. Detroit Office to the Philadelphia Office in 1974 in connection with . operational consolidation. Accordingly, the Claimant's prior work record does not support the contention that the Claimant has held positions of equal or similar responsibilities.

        The Carrier stated that despite its determination that the Claimant lacked the qualifications for the position, it nevertheless afforded him an opportunity, by an oral examination, to demonstrate his fitness and ability. This *i:as an additional opportunity to demonstrate his fitness. It was hot an effort to show which of two employees was the most qualified. The Carrier stated there was no impropriety in this oral examination and the Claimant has not cited any examples of any improprieties in the questioning of the oral examination . .


.. The Carrier further stated that it had granted the
        Claimant a nine month leave of absence for educational purposes,- and it

        would have been short sighted for it not to have used the Claimant in any

        job for which he was qualified and to take advantaGe of whatever additional

        training he had received during his leave.

., .. Award No. 13
    (~L4 Z D 3 s Case No. 13,

    . 7 r

    Findings:. The Board, upon the whole record and all the evidence,

    finds that the employee and Carrier are Employee and Carrier within the .

    Railway Labor Act;.that the Board has jurisdiction over the dispute, and

    that the parties to the dispute were given due notice of the hearing

    thereon.

      ' The Board finds. this an extremely difficult case. This case, unlike Award No. 9, involves a Claimant who has worked for a number of years in the very Department where the cognizant job was situated, and had also ::orked__the various jobs in the Department. This presumably would give him a general knowledge of the spectrum of the several clerical jobs therein. The description of Position AB-287 reveals it required the performance of routine banking and credit transactions such as:


                    ...'Process bank and draft plan charge to customers, prepare deposits ::here re quired, handle charge backs and-correspondence relating to bank and draft

                .' plans, etc."

      The Board finds it difficult to conclude that the

      Claimant, who had worked -from 1970 to September 1974 in the Customer

      Accounting Center and had handled amon- other matters accounts receivable,

      credit regulations, interpreted freight way bills, and collections of

      bills from delinquent accounts, was not qualified to handle the processing

      of bank and draft charges or prepare tank deposits. The Board finds it a

      reasonable asaump-tion that the Claimant could learn and perform these duties

      in a very short time, assuming he could not pem-form them, ab initio.

      The Claimant is entitled to enjoy the benefits of his

      seniority, and in the absence of a clear sho:ang that he was not qualified

      and fit to perform the assigned work, Rule 2-A-7 is entitled to=-credence

      and weight.

AO PLS 7-01
Award die. lj Case 1:0. 13~

                Wile the Board a._;reos that the Carrier is entitled to

excise its sz=,,orial judsnzent as to the qualifieaticns of the- involved
 ezQployee ® the exercise of this ana;erial ,jud.: raent auat be be;ed on rationaas.
 grounds. The Bcard finds that 'he record does not sho:r that the C-arrier has
 ressonab.e and `.:C17 founded reasons for hcldin.- that this experienced.
 clerical employee was not quaUfed to displace to the position involved,
 especially with a short orientation period. I t is not untoxard fox an om
 ployee to contend that he is qualified to perform a no-c,joh ::ith a short
 training period. ?he enployee is entitled to enjoy the benefits of his
 seniority unless it mater`a inpedes the efficient operrtionsof the
 ^Ca$-zlCrlz busizeas..

                In sumnsz-y9 .:hen the Board weighs the logitir.aio


cM c' n!,
 oiu U 7 positions of Una yartiQ3, t1-.e :;Gig:ht ci va4w prolavive. o'rvidr-
 C~
favors retie Clad--ant.

 A.zzard s

 Yrderd
          t ' ~ ,~


aF. T® Lyncfloyce :%ember

          l7 .. PS . _ E'


CMflim susa"ined. . .

 The Carrier is directed to eozply pith the Award,

 r
 Ca or Mfore ~ _-..__. t ~ a-l~?. .

 :idc:n1-2r3, Lhair.:~n and ::eutrealx:r

 Carrier :;embow
                      PUBLIC LAW BOARD Uo. 2035

                      Clarification of Award.No. 13


      Parties: Brotherhood of Railway and Airline Clerks

      and

              Consolidated Rail Corporation


      On October-23 , 1979 the Hoard met in executive session in Nashington, D.C. to review a draft of proposed Award No. 13.

    The Carrier interposed an objection to the measure of relief that the proposed Award intended to,grantthe Claimant, i.e. ,act addict, tional days pay for each day he had been denied the job he attempt. ed displace a junior employee. This involved a period of time from May 6; 1975 to date of Award. After a comprehensive discussion, the Carrier furnished additional information on November 1, 1979 which had been requested-by the Neutral Iiember of the Board.

The Carrier s:Lated.j=hat granting the claim in full-was not mak
 ing the. Claimant whole, but granting him a windfall, and furthermore
 was assessing it a "penalty when-the Agreement contained no provision
 for assessing penalties against a party found violating time Agree
 ment. The Carrier also stressed the Claimant was not an exemplary
 t employee and had been dismissed twice from its service since the fil
 ing of the instant claim, but had been restored to service each time
 when the discharge was converted to a suspension.
    The Carrier statedthat the Board, if it granted tbae Claimant any damages at all, should make him whole but not allow him to be ., unduly enriched..


          The Organization, on the other hand, urges the claim be allowed

                                                Award No. ~PL4 Zfl35 q s _ 1 3


in full, because otherwise no effective deterrent existed to prevent the carrier from violating the Agreement. Vithout adequate monetary damages, the Carrier is free to breach the Agreement without there being' any meaningful restraints placed on it.
 Having given due consideration to the arguments of the parties as well as the date furnished subsequent to the executive session, ere find that the appropriate relief to be, in part, to grant the Claim ant from May 6, 1978 to September 24, 1975, the difference in the monthly rate between Job--S-89, the job initially held by the Claimant, and Job AB-287, the job to which the Claimant eras not permitted to displace, or the difference between $956.23 and $1051.90 cer.month, namely, $95.62 per month.
 The record reveals that Job S-39 was abolished on September 2·, 1975 and the Claimant displaced a junior employee from Position F-124, which paid the same monthly rate as AB-237, or $1051.90:, Since September 24, 1975 all positions held by the Claimant paid-a monthly rate not less than $1051.90.
 . On July 28, 1973, position F.B-237 was assigned to an employee who was senior to the Claimant. Therefore, for the period from Septenber 241, .1975 to-July 28, 1978, when the violation ceased, oz for a period of 22 months, the Claimant shall be paid an additional sum of $1000.00 as damages for not being allowed to occupyy'a position he would have held, but for-the Carrier's~breachof Rule 2-A-7.

 -'-""~ we find~that the facts of this case warrant these damages be-

 ing assessed. -
 .' Award No. 13
    ~ pir~'2.a35 ~


      In summary, sae find that the Claimant be awarded $95.62 per month from bray 6, 1975 to September 24, 1975, plus the sum of $1000.00 as the complete settlement of his claim. .-


                  .. o


                          Jaao' teiaenbcrg, Chairman n , Neutral =:ember


-a