Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
7263
SECOND DIVISION Docket No.
7049
2-S
Pf -BM-
t
77
The Second Division consisted of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
( System Federation No. 114, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Boilermakers)
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That Boilermaker Apprentice Armando Velarde was unjustly dealt
with when he was removed fran the service of the Southern Pacific
Transportation Company on May
16, 1974
and that said removal was
in non-compliance with Rules
39
and 43 of the MPBC Department
Agreement. That accordingly, the Southern Pacific Transportation
Company make Boilermaker Apprentice Armando Velarde whole by;
2.
Restoring Armando Velarde to his former position with all rights
and fringe benefits-unimpaired, including seniority, vacation,
hospitalization, health and welfare and death payments all of which
are to be paid by Southern Pacific Transportation Company.
3.
That the Southern Pacific Transportation Company compensate
Boilermaker Apprentice Armando Velarde at his pro rata rate of
pay for all time lost while held out of service and violation
corrected.
4. In addition to the money amounts claimed herein, the Southern
Pacific Transportation Company shall pay Armando Velarde an
additional amount of
6%
per annum.
Findings:
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employe within the meaning of the
Railway Labor Act as approved June 21,
1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Form 1 Award No. 7263
Page 2 Docket No. 7049
2-SPr-BM-'77
Claimant entered Carrier's service as a Boilermaker Regular Apprentice
on December 13, 1973. On May 16, 1974 Claimant was formally notified of
Carrier's determination that he had shown no aptitude to learn the trade
and, in accordance with Rule 43 (f), was not being retained as an apprentice
and was being removed fram the seniority roster.
Rule 43(f) provides:
"If within the first service period of 130 days a regular
apprentice, or within the first
65
service days a helper
apprentice, shows no aptitude to learn the trade, he will
not be retained as an a, pxentice. Helper apprentices and
regular apprentices when drawn from the rank of helpers, will
retain seniority as helpers during the respective 130 and/ox
0S5 service days provided fox in this paragraph." (Underscoring
added).
The precise question to be resolved herein was determined between these
parties in Second Division Award No. 6873 holding, in pertinent part:
"Rule 43(f) is the controlling rule of the applicable agreement.
It stipulates that 'If within the first service period of
130 days a regular axpxentice, ox within the first 65 service
days a helper apprentice, shows no aptitude to learn the
trade, he will not be retained as an apprentice.'
Carrier's action was plainly taken within the prescribed
130 days and the fact, that five and one-half working
hours of the 130th day had elapsed before Claimant was
disqualified does not- detract from its timeliness.
Since the issue before us concerns Claimant's qualification
as a regular apprentice and Rule 3 f deals specifically
with that subject, Rt;;.le -E3 f) is controlling and Rules
39 and 0, concerning respectively, discipline and a 0
day period to establish competency, axe not in point.
It is well settled that Carriers, charged as they axe with
responsibility for railroad operations, have considerable
latitude in determining an employe's-fitness and ability and
that the Board will not substitute its judgment for that of
Carrier in that regard in the absence of a showing that
Carrier's evaluation was arbitrary or capricious. See, e.g.,
Third Division Awards 12669, 13759, 13876 and
16871.
The record shows that Claimant was given a considerable
period, at Carrier's expense, to receive training and to
qualify and that Carrier's determination was arrived at
after considering the reports of appropriate supervisors
and was not cavalier.
Form 1
Page 3
Award No. 7263
Docket No. 7049
2-SPr-BM-'77
"Accordingly, while this Board is not passing upon the
aptitude of Claimant, it finds no basis in this record fox
disturbing Carrier's decision not to retain Claimant as an
apprentice. The claim will be denied." (Underscoring added).
The Board finds no reason to deviate from Award No. 6873.
A W 'A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
~tosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 5th day of April, 1977.