PUBLIC LAW BOARD NO. 5244
BROTHERHOOD OF MAINTENANCE OF SPAY EMPLOYEES )
Case No. 22
and )
Award No. 17
NORTHEAST ILLINOIS REGIONAL COMMUTER )
RAILROAD CORPORATION (A PUBLIC CORPORATION) )
Martin H. Malin, Chairman & Neutral Member
R.C. Robinson, Organization Member
J.S. Morse, Carrier Member
Hearing Date: January 28, 1994_
STATEMENT OF CLAIM:
1. That Carrier's decision to disqualify Mr. R.
Carpenter as a work equipment mechanic on May 1, 1992
was arbitrary, capricious and in violation of the
Agreement.
2. As a consequence of the violation referred to in
Part (1) above, Claimant R. Carpenter shall be assigned
to the work equipment mechanic position and he shall be
compensated for all wage loss suffered as a result of
said violation.
FINDINGS:
Public Law Board No. 5244, upon the whole record and
all of the evidence, finds and holds that Employee and
Carrier are employee and carrier within the meaning of the -
Railway Labor Act, as amended; and, that the Board has
jurisdiction over the dispute herein; and, that the parties
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to the dispute were given due notice of the hearing thereon
and did participate therein.
On April 21, 1991, Claimant was awarded the position of
work equipment mechanic. Claimant had bid on the position
in response to an April 1, 1992 bulletin. Claimant was not
released from his prior position until Friday, May 1, 1992.
On May 1, 1992, Claimant reported to the equipment
mechanic position. He was given a two-cylinder diesel
engine and a manual and told to troubleshoot the engine and
make the repairs necessary to get it running. Claimant
asked to be allowed to borrow the manual for the weekend and
to take the test the following Monday. His request was
denied. Claimant was unable to get the engine running by
the end of the day and he was disqualified from the
position.
Carrier has given the same test to employees who bid
into the equipment mechanic position since October 1988.
Claimant testified that he was aware of the test. Claimant
further testified that he had no prior experience with
diesel engines but had some prior experience with gasoline
engines.
Claimant contends that his disqualification violated
Rules 7(B) and 8(D).
Rule 7(B) provides:
When making assignments, the senior applicant of the
rank bulletined will be awarded the position subject to
the demonstration of his ability to meet the
requirements of the position within thirty (30)
calendar days after the date reporting to the position.
If the employe fails to qualify within this period, the
position will be declared vacant and rebulletined, and
the disqualified employe, having been notified in
writing the reasons therefor, will return to his former
position if it still exists or has not been claimed by
a senior employee exercising displacement rights, in
which event such employe shall exercise general -
displacement rights.
Rule 8(D) provides:
Employes accepting promotion will be given a fair
chance to demonstrate their ability to meet the
requirements of the position. If the employee fails to
so qualify within thirty (30) calendar days after the
date reporting to the position, the position will be
declared vacant, and the employe, having been notified -
in writing the reasons therefor, will return to his
former position if it still exists or has not been
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claimed by a senior employee exercising displacement
rights, in which event such employe shall exercise
general displacement rights.
Claimant contends that Rules 7(B) and 8(D) provide for
a period of thirty calendar days in which to demonstrate his
fitness and ability for the position. During this period,
Carrier is obligated to provide training and assistance. In
contrast to the requirements of the Agreement, Claimant
argues, Carrier gave him a one-day qualifying period and no --
training.
Claimant contends that Carrier did not give him a fair
opportunity to demonstrate his ability when it denied him -
the opportunity to borrow the manual for the weekend and
take the test the following Monday. Furthermore, Claimant
argues, Carrier never advised him that the position required -
a qualifying engine troubleshooting test until he reported
to the position. For all of these reasons, Claimant
contends that his disqualification was arbitrary and
capricious. Claimant finds support for his position in PLB
3781, Award No. 36,-and Third Division Awards Nos. 8197,
14672, 16960, 19934, and 21067.
Carrier contends that Claimant was given a fair
opportunity to demonstrate his basic abilities by taking the
test on May 1, 1992. Carrier emphasizes that the test was
fair and evenly applied since its inception in October 1988.
Carrier contends that the test determines basic abilities
and after passing the test, an employee is given the
requisite training to enable him to fully qualify for the
position within the thirty day period.
The Board finds that Carrier did not violate Rules 7(B)
and 8(D) by disqualifying Claimant because he failed the
engine test on May 1, 1992. The Agreements at issue in the
Awards cited by Claimant provided for seniority to govern
promotions and assignments when fitness and ability were
sufficient. Rule 7(B), on the other hand, provides for the -
bulletined position to be awarded to the senior bidder,
"subject to the demonstration of his ability to meet the
requirements of the position within thirty (30) calendar
days. . . " Thus, under Rule 7(B), the senior bidder is
awarded the position but must then demonstrate that he will
be able to fully qualify for the position within thirty
days.
Nevertheless, the Board finds the Awards cited by
Claimant to be instructive. They consistently hold that
sufficient fitness and ability do not require actual
experience, but merely require sufficient ability to raise a
reasonable probability that the employee will be able to
fully qualify within the specified time period. Similarly,
Rule 7(B) awards the position to the senior bidder, subject
6a Y Y -17
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to his demonstrating sufficient ability to raise a
reasonable probability that, with appropriate training, he
will fully qualify within thirty calendar days.
Carrier's Roadway Equipment Supervisor described the
test as follows:
The tasks required in that test require less than one
day and it's adequate time to do the test. If you
can't do the test in that time period as basic as they
are, you will have a very hard time picking up on the
rest of what we have to teach you or the tasks assigned
to you . . . . [B]asically if you can read the book,
it's a very simple operator's manual to that engine, it
gives you the troubleshooting guide and step-by-step
procedures. If you can read the book and follow the
sections, you can fix the engine.
The Equipment Supervisor's uncontradicted testimony
established that the test was a reasonable first step
whereby, consistent with Rules 7(B) and 8(D), the Claimant
was given an opportunity to demonstrate his ability to meet
the requirements of the job within thirty days. His
inability to repair the engine by following the step-by-step
procedures in the manual, made it unlikely that he would be -
able to benefit sufficiently from the training that would
follow to ultimately assume full responsibility for the job.
The question remains, whether Carrier denied Claimant a
fair chance to demonstrate his ability when it refused his
request to be allowed to study the manual over the weekend.
The record does not establish unfair treatment. Claimant
testified that he was aware of the test and that he had
studied a diesel mechanics book to prepare for it. In
requiring Claimant to take the test on the first day he
reported, Carrier was following its standard practice and
not treating him differently from similarly situated
bidders. The elementary nature of the test, read and follow
step-by-step troubleshooting guidelines, coupled with the
fact that Claimant was not singled out for treatment
different from other similarly situated bidders, leads us to
conclude that Carrier did not violate Rule 8(D) by denying
Claimant the weekend to study.
We find that Carrier did not shirk its responsibility
to train Claimant for the position. Rather, Carrier gave
Claimant a fair chance to demonstrate his ability to benefit
from the training and a fair chance to demonstrate the
reasonable likelihood that he would qualify for the position
following the training period. Claimant was unable to do
this. Consequently, we are unable to find that Claimant's
disqualification was arbitrary or capricious.
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AWARD
Claim denied.
Martin H. Malin, Chairman
L-
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J.S . orse R.C. Robinson,
Carrier Member Organization Member
Dated at Chicago, Illinois, February 21, 1994.