SPECIAL BOARD OF ADJUSTMENT N0. 506
THE ORDER OF RAILROAD TELEGRAPHERS
VS.
MISSOURI PACIFIC RAILROAD COMPANY
Roy R. Ray, Referee
STATEMENT OF CLAIM:
"Claim of the General Committee of The Order of Railroad Telegraphers on the Missouri
Pacific Railroad, that:
1. Carrier violated Rules 17, 18 and Paragraph (B) of Memorandum of Agreement dated
December 1, 1959 in lieu of Rule 37 of the Telegraphers' Agreement when, on the
27th day of November, 1961, it arbitrarily and unilaterally assigned junior employee C. R. Hayes to the star-agent-telegrapher position at Jacksonville, Texas,
denying senior applicant W. S. Ingram the exercise of seniority rights.
2. Carrier shall compensate Agent-Telegrapher W. S. Ingram the difference in pay
between the star-agent-telegrapher position at Jacksonville, Texas, rate of
$22.12 per day (six days per week basis), and the Franklin, Texas rate of $19.58
per day (five days per week basis), and the difference on any other position Mr.
Ingram may perform services to that of the Jacksonville Agency beginning on the
27th day of November, 1961, and continuing thereafter as long as Carrier refuses
to permit Mr. Ingram to exercise his seniority rights on the position at Jacksonville, Texas."
OPINION OF BOARD:
On October 26, 1961, Carrier bulletined the position of Star-Agent-Telegrapher at Jacksonville, Texas. Fourteen persons applied for the position. The Claimant stood first on the
seniority list with a seniority date of March 7, 1929. From these fourteen applicants
Carrier's Superintendent and General Agent selected three and recommended them to the General Manager and Traffic Manager in, 1, 2, 3 order. C. R. Hayes was first choice, W. T.
Ray, second choice and V. L. Smith, third choice. The recommendation of the Division
Officers was approved and on November 27, 1961, Hayes was assigned to the position. He
stood fifth on the seniority list with a seniority date of February 27, 1937. At the time
Claimant was Agent-Telegrapher (Temporary) at Franklin and Regular Agent-Telegrapher at
Jewett. Hayes was Temporary Agent-Telegrapher at Jacksonville, and Regular Swing Telegrapher at Jacksonville-Troup.
The Employes filed the present claim charging that in assigning a junior employe to the
position Carrier had violated the seniority rights of Claimant. The claim was denied by
Carrier at all stages and is properly before this Board.
The Employes contend that Carrier's action violated Rules 179 18 of the Agreement and also
Rule 37 (b) as modified by the Memorandum of Agreement of December 1, 1959. They assert that
Claimant was well qualified for the position and that the Company did not give any consideration to his seniority as shown by the Superintendent's letter of December 18, 1961, in
cinch he said:
"Since Jacksonville is a star agency, assignment can be made without respect to seniority; therefore I see no violation of Agreement. Your request for reassignment
of the position is respectfully declined."
Carrier contends that appointments to star agency positions are controlled by Rule 37 (b)
which provides that such positions are to be filled jointly by the Operating and Traffic
Departments and under which seniority prevails only where the qualifications are equal.
M
SBA #506, Award
k.
Page Two
It says that Rules 17 and 18 are general seniority rules and are inapplicable to the Star
Agency positions by virtue of the express provisions of Rule 1(b) which says that assignments to star agencies shall be made in accordance with Rule 37(b). It says that in this
case, the Superintendent and General Agent determined that Hayes and the other two men
were more qualified than Claimant for the position and made the recommendation to the General Manager and Traffic Manager on that basis. So seniority did not come into the picture
because the men did not consider Claimant as well qualified as Hayes.
Rule 1(b) says: "Positions covered by this Agreement will be filled from the official seniority list, applicable to employes incorporated in this Agreement and the employes so assigned will be considered regularly employed. _This section shall not apply to Star Agencies
as indicated under Rule 37 of this Agreement, their assignments to be made in line with para-
graph (b) of the rule mentioned." (Emphasis added.), Rule 37 (b) is a special rule dealing
with the filling of Star Agency positions. It says in part: "Positions marked with a (*)
are to be filled jointly by the Operating and Traffic Departments from the ranks of employes
covered by the Agreement in the employ of the Carrier who have accumulated one year or more
of seniority under this agreement and except as hereinafter provided . . . applications
will be considered according to ability andwhere qualifications are equal, _seniority will
prevail." (Emphasis added.)
Only applicants of one or more years seniority will be considered but it will be seen that
the first consideration is on the basis of ability. If Employe A is clearly the best qualified in the opinion of the Operating and Traffic Departments, he is entitled to the job.
If some other applicant is equally as well qualified, then and only then does seniority come
into the picture, in which event it is controlling.
It is well to note here the difference in wording between 37(b), which says "Where qualifications are equal, seniority will prevail.", and that of Rule 17, which says "Employes
shall be regarded as in line for promotion and where qualifications are sufficient, seniority will prevail". In all of the Awards relied upon by Employes except one the language
involved was like that of Rule 17 to the effect that where qualifications are sufficient
or where fitness and ability are sufficient, seniority shall prevail. In most of them the
Board held that where Claimant was qualified, the Carrier was not entitled to compare qualifications, and award the job to a junior man better qualified. In some of them the Board
found favoritism on the part of Carrier. None of these Awards are applicable here where the
wording of 37 (b) is: "Where qualifications are equal, seniority will prevail." (Emphasis
added.)
In Award 44, relied upon by Employes, the language of the Agreement was "Where the qualifications are equal seniority will prevail." The decision of the Board in that early case
was that under the peculiar circumstances, Claimant should be given a chance to see if he
could do the job. We do not believe that Rule 37(b) contemplates that the person is to be
assigned to the job on a trial basis, and we therefore feel that Award 44 is not persuasive.
We must reach a decision here not on the basis of whether Claimant had sufficient qualifications but on whether his qualifications were equal to those of Hayes. While the Employes
have shown that certain Carrier officials regarded Claimant as qualified, they have failed
to show that he was equally as well qualified as Hayes. The right to determine qualifications of employes rests with management and, in the absence of a showing that Carrier's
action was arbitrary and in bad faith, we would not be justified in overturning its judgment. If, however, we were convinced that Carrier acted capriciously and gave no consideration to Claimant's qualifications, we would not hesitate to sustain the claim. But we find
nothing in the record to indicate that Claimant's qualifications were not considered along
with the other thirteen applicants in the selection of the three men recommended to the General Manager and Traffic Manager. Carrier states that the records and experience of all 14
were considered by the Superintendent and General Agent in formulating their recommendation
and the Employes do not successfully rebut this fact.
SBA #506, Award #2. Page Three
For the reasons stated, we conclude that no seniority rights of Claimant were violated by
Carrier.
FINDINGS: The Agreement was not violated.
A W A R D
Claim denied.
SPECIAL. BOARD OF ADJUSTMENT N0. 506
/s/ Roy R. Ray
Roy R. Ray - Chairman
/s/ D. A. Bobo /s/ G. W. Johnson
D. A. Bobo - Employe Member G. W. Johnson - Carrier Member
St. Louis, Missouri
July 29, 1963
File' 279-265