Form l NATI01?AL RAIIR0AD ADd'C1STrEN'I' BOARD Award No. 7969
SECOND DIVISION Docket No. 7859
2-BNI-CM-179

The Second Division consisted of the regular members and in addition Referee George E. Larney when award was rendered,

( System Federation No. 7, Railway Employes'

( Department, A, F. of L. - C. I. 0.

Parties to Dispute: ( (Carmen)
(
( Btzrli.ngton Northern Inc.

Dispute: Claim of Fm-ployes:_

1, That the Carrier v.i.c7:Lated the current agreement, particLlarly

Rules 13. 35 and 89 when they a.rrproperhy dismissed Havelock Shop's

Upgraded (advanced) Camwn Lance C. C-aeoke from service October

5, 1976

2. That accordingly the Carrier be ordered to compensate Upgraded

(advanced) :lechan:ic (caxT-iarl) Lance C. Goecke 3.n the a.::ount of the

Car-man's rate at wt=atever hours the shop farce is assigned to

work, all paid holiday-s, all ., benefits under Travelers Insurance.,

all benefits under Ioerital plan, all, benefits under su~aplementa:L.

sickness plan, all benefits under Railroad Retire--ent plan

(unermloy:nent, sickness and retiz°e:aent ) all trine to count toward

jourzie;;,-nen's date, all tire to count for vacation credits and a: l

records cleared of this dismissal,, this claim to con-mence October

5, 176 and continuing until Lance C. Goec':e is restored to ;,Torxz at

Havelock Shops.

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 arid employe within the meaning of the Railz~ray Labor Act as approved June 21, 193.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

Claimant's service with Carrier -w-as terminated wheY1 on October 5, 19'76, Claimant was dropped from the Apprenticeship Training Program during his probationary period,

Clai:nant cor.menced his erplayment with the Carrier on April 5, 1976 as a freight cax;nan apprentice in the Mechanical Department at Lincoln--I-Taveloch, Nebraska. Shortly thereafter, there developed a shortage of caraen at the
Form 1. Award No . 7969
Page 2 Docket No. 7859
2-BSS-CM-' 79

Havelock Shops. Carrier responded. to the shortage by bulletining new positions
on the Lincoln Seniority District. As no bids for these positions nacre
received by tile Carrier, the Shop Superintendent at Ravel Havelock recoanmended that
ninety-one (9rl) carznen apprentices he upgradad. in accordance with F.'ule 39(b)
of the Controlling Agrectnent dated April 1, 1970. In a letter dated Jane 2,
a.976, Carrier formally transmitted this reccri-,neadation to the Organization
and on June 22, 1976, the Ortanizat:i.on agreed to the upgrading plan after
liav:i.ng checked the seniority list covering the Lincoln Seniority District.

Claimant was arnor.z; the ninety-ono (91) apprentices -frllo were upLgx°a,ded following tree Organiza.t flre's approval. On Jane 24, 1976, Carrier bullet-ined position of Freight C4 x';r_a.n in the A i rsl ide Sho-o for the 11:00 FYI to 7-00 AM sh:i.ft, Cla::a;::.nt bid on this position and was a,~arded the job on July 6, 1;76 receiv'_Yy an upgraded apprentice date of June 24, 1976.

At the Aax'slide Slop, Claiz.~U,rt operated roto jets wpy~.~lyrinb paint stripper

to the inside of moppet cars. However, du..riry the coarse of his eTcmloy:znent
at the Air7_:i.d~ Shop, the supply of hopper cwt:; became tc~z~;-oorarily a}_hauNi;ed
and as a result, Cla,ii:zwz~;t- was reassigned to 'the .main car shop i,,There he irorked
ors heavy rcpa4, z°s and ope:.·a, ted a cutti ng touch, Dur:iz'~; the course of hi-s
er:rDloynlent at the main car shop, 4 received a poor evaluation report
regarding Z:'Orw 1JerfOT`'?c?nOe by two Of his SeGOild shift r'L1~3oi'V'1SOx'Se AS a
result, Carrier dropped C laimant from the ap- U
pwezAtz.ceslrip tr aiming; px'ogra.'a in accordance le~ith Rule 38(c) of the A-p_px'ent:i.cesl-ip Fr,reenent dated Ivlovcrler 15, l9'h, and because Cla;.znant possessed no additional seniority he oras
simultaneously terminated from service.

The Organization takes the position that when Claimant was upgraded to the position of Freight Caiman in the Airslide Shop in accordance wr~th W7.a 39(b) of the controlling agreGnent, C1aJ_lt::Lnt was effectively removed from apprentice status and therefore was no 1orZor subject to any of the provisions of the a.lrarent:i.ceship agreement except for pant (f) of Rule 38 which requ-ires that:

"Each apprentice including those upgraded, will complete the technical training which is relevant to his craft and :if during the 122 day probationary period he fails to do soy he can be dropped froze the program and Rule 13(g) is not applicable,"

Therefore, the Organization argues Carrier improperly disrn:issed Claimant by
invoking Rule 38(c) of the apprenticeship agreerzent as Claiwa.nt had been
upgraded and Z~ ws no longer an ap px'entice. In addition, the organization
maintains that the recognized practice in such -natters irlth the Carrier has
a1T~rays been, when an apprentice a,ssvp-res a Cat-man's Classification through
upgx°a,ding, he as: u.~nes all responsibility of a cG,r-man and is governed under
the lan,~Lia ge spelled out for carmen in the agreements in effect on the
property.
Form 1 Page 3

Award No. 7969
Docket No. 7859
2-PTVI-CM- '79

In support of its belief treat apprentices, once upgraded no longer have

apprentice status unless formally downgraded, the Organization cites Role
38(m) of the apprenticeship agreement which provides for a fixed ratio of
apprentices to Carman mechanics of one (1) to six (6) respectively. The
Organisation car.tez:ds the practice has been that when an apprentice leaves
the ra,ni-s of appr:wU,ices tax·au7h the upgrading process, his apprentice
position is filled ;;-i_tli a near ay_prents.c a in order that the quota af apprentices
will be z_:a,intainec7. as set forth in Rule 38(z:l). The organization znavkes tip::
point that '1.f the Ca'rr1Cr maintains <.> `,~ 05:Lt1aJ1 t11a'that i, the ~ its C1u,1Y'?'~,nt was still
an apprentice at the time of his disrnissul,, then Carrier must be in violation
oz the ratio of appie:zt:i.cas to cayman 5nr:c:hat.ics provided for in hole 38(m;l.

further evi deuce of :its point C1 ainant was no -longer an apprentice

at the t:iz:!e of his dismissal, the Organization cites 1-;tile 13(0) of the

~_, controlling a,grE:Ej:c-~a1t which, t:~1i~1~> O't~EWr Wings, prOv:La'S

that when an emj.oyee

fills a new job or a permanent vacancy and :7_S not disqLtalified within thirty
(30) days, 1. ~ ·a . a ., --..>'1t <· h:~... i be conside:°c:a qualified

..ec~,v.because _, of in;.o-r·..m~t~zlec.r, the e.:.c~_o;,ree v~:1 . mfar such position. The Organization 'aLE:S the point tact Claimant had

applied for and ~.'-a5 awarded the Ca'::T:1a7I M4:::1 an1C lS position i n the Airsli de
Shop and had s~ror~:ed in that classification for one lz:a__tdred and three (7_03,)
days, i%-ell :in excess of the thirty (30) days provided for in hula 13(g).
As Claiz.ant was not disqualified under Rule 13(x;), the organization argues
he therefore S--as acrtsidered qualified for the upgradcd position and thus
was no a.ar4ger considered to be an apprentice.

Reasoning that; Claimant was :iznnropecl y dismissed under Rule 38 (c ) of

the apprenticeship aZreenent of November 15, 1971+, the organization takes
the position that the instant case is a disciplinary one. in arguing that
Claimant no longer had apprentice status, the Organization contends that in
haviubeen ixipraperl.y dismissed, Claimant was denied his contractual rights

under the controlling agreement of Anvil
was denied his right under Rule 35 ( a ) to

Fvxtherznore, in progressing the :instant claim as Organization alleges Carrier violated Rule 34(a) when it failed to decline the claim at the first required sixty (60) days.

Carrier takes the position that Claimant remained in apprentice status, noti~fithstandirz~, the fact that he eras 'upgraded shortly after entering the apprenticeship program and whsle still in 117.5 first 122 day training and probationary period. The Carrier maintains that when several of the Rules governing apprentices are read and iraerpreta.ted together, it can be concluded that both the Apprenticeship Agreement and the controlling agreement contemplated the situation of an apprentice being upgraded during the apprenticeship period. Specifically, Carrier cites the faLov,~.n; Rules in pertinent paint:

1 1970SpeC:Lf1.Cc,lly, Claimant

,

a lair and impartial investigation.

a disciplinary matter, the of the controlling agreement appeal level. within the

Rule 38(f) Technical Instruction -- "Each apprentice, inelud:iry those ur;;~ra cze_d, will receive and cozaplete a course of '! I1Str17Ct1.071 on the technical :>»hje:cts related to 111.5 trade, the cart of which shall be paid by the company 0 .." (1inphasis added)
Form 1 Award No. 79&g
pie 4 Docket No. 78>9
2-BNZ-cry-179
Rule 38(g) Transfers -- "A~rnrentices ul:e.o are not
workir.F in an up.-;raded mechanics' sta-c_us may be
req_ui.t~ q to transfer to any other facilit-ies and
locat.j'oas aVray :I'x·o':n their hcjae point for purpose of
:unpr ovin g their training. " (=~:,nThas:is added)
Rule 88(h) Traioi_~!Pericd -- "Regina.!' arsorentices shall
serve si-Y. training periods LOtalirg 7days. ."
,R?1e 38(1) Co:rp:f_ction of ~.'ry?-onticeship -- "Upon the
date of co::mletion of the apprenticeship trainin
pr pg't°at') under t121 S air eCI:1Pnt ., the a'(_J'~rC:'1tj.C C `?T! 1l . be
placed on the jou::'ne;n:ian >i:ecrr.nics' roster of his
craft. on, the sexu.a?':i.ty district ;there he cornenced
his training.
Rule 39(c%) ~- "heylar and helper arjprent.:~ces upgraded
or ad.VaInced under this an?°ea-eat shall l '_cont-iriae to
a.CCUi? "'_2_L'~TC'. S21lio_L'lt;~

c.S _c:~n.))~a·. ~_1_.CE_?S hand ~:la 'G7 nie Z'io?;_ied

_aS _G, I"e:C_t,RW_'.G' ;i1. 2_ bC Ct' -:dj.'L. z to 't'·i e LJ' c:,nY)?'ei:t7 CeSh7_'p

_ ~'"lJW .1 ~._..~. ~ 1 i ~5 1 ' ..~..~i,.

t7.a.'' 6 ~_ _1~:)_oi1 CC"'.:'.7~`- ' n

, - ,_ > 'e2._i_ . t'='_ _:_a t~ ~:L?::E.

-i _j' -:_ 'l p '"- ,fig i s~ `~·'W -r !_rl ' t 7ic t i_S't..._C. :L: ~. :Wi 'Gl r:.. _1)'_ Y:L .C, J ~· °i:~'?_F.'2 _ _1 n

e_Y's'F~-~.~_, '~:h:i_S_~_~_';L'E'E):_~'r,i_;. ^_'~.ii~o~. _J,.Jx~~~'c:t:_'au~M(v:_:!o;~e~d7_-Ti~:..n.i_:J.`taL_,'t~:cdo_rdarce with

tl GWG'ojaC~7 on thE.'

_S e"_la_ory·__`__ O.;t->,_,___,`,t T,r~C'.'i~,·'?' CS~i.s'1 X11°.'.1Y' res-ective

'. .: _ "~.L'

class:if':icw~:~_on e~.T,izer~av the mint there n:;:ployed or at

such other po:i.rAt w;her a they are offered and. accept

errplvy~nent as a n:-eclmnic." (Ina:hasis added)

In citing those ,rules the Carrier makes the following arguments:

(1) There is a finite length of time (732 days) one rmst serge as an apprentice.

(2) That only after carnpl etion of the apprenticeship period will the apprent_ce be placed on the journeyman n:echan:ics' roster.

(3) That if an apprentice should happen to be upgraded anytime while serving his ap~prenta.ceshi p period, the time worked in the upgraded position shall be credited towards the completion of the apprenticeship tex°an.

That if an appr entice i s up raded while serving in his apprentice

ship per-! .od, the apprentice ;rill corrti!me to receive and is

required to coLq nlet~e a course of instruction on the technical

subjects related. to 1?:is trade.

Thus Carrier argues, the effect of upgrading an appr; Trice does not serve to terziiinate the apps°enc,eeshj _p period. For Farp0::es of the governing
Form l Award No. (9"9
page 5 Docket No. 7859
2-BT'TI-CM.,- '79

agreement, the Carrier declares, the apprentice, though. upgraded, nevertheless remains an apprentice.

Since the Claimant continued in a'~prentice status and since he was still

in his first ogle hundred and t'vrenty-t~,;~,D (l22) da:;;r 'training, :period which a,1;o
const:i.tr~ut;ed his ;z I
probationary per l_od, any! farther, since he was adjudged as lacking demonstrated aptitude and interest in '! ea.rni I2g, the trade, Carrier argues Claimant 'eras rightly and -J'udt4 :c'ia;ely d:isnd::sed from serva_cn under

re ' Cae -instant aoret:r::i:.21t ® Cot S'X:Ci1d 1.Y1~-';~'CT', Ca. 1er d' -:a,`r e25

Rule iF)(C) Of ti '1- app nt1. ~, _

with the Or_ja,n.:i_ zp t,. 1 s '+' ol·~'f T^ r o n i W·.r,,.r onn
.: ; can posit', on that t :i~ ~.,_.._. i., w d:~ ;po~.i,.ypli2,.a.r_and a1.lec;es the 0?°(,allizat:T_61s d_ Ld not etorco-p-r:Ly pre~rrecs the cla,a;_^, there-'l);;°

causa_:a_ their case to be pfocedura,~Ly d.e:'ective.

1

Spec Carrier alleges the c:i.a:.m eras ;got progressed -in a timely'.

manner ~~.~. it was no-- d7_reG'tl" <%,_~J11C?,ICCI. 'i.0 Carrier's h'L~'~,''t?°S` Of:.'~.CCi dE:S~ ~l
'Yl:z'~.:8~,. to ha,5aille such u.:i.~;putes iri't.hiT!>, the 60-a"L;;T ,,?eriod rriov9_ded nor by ivle 34(b). ACCCi;t.'Cl.:i?-! .a..y, the (Jlw.'Lr'? was not hlaYld..'.Eit :i_il the 1151"..^..~ iL;.'.,.i:.ner 02'1 the property aS rEC;1?.:!_.rC=d by thJ' ~U,ilw3,~)'' To.'DOr ti(,'t, Sect-ion 3 T~':i r';;'G (1) and C:i.rCUlar 'n0. .1.. Of the .Gatlonaa r'`.,':!lrO:Ld :ld.`iu:itY."_en"v j'U;)a'd anc.i. au s1:C1.1, title Cc^.,rriE.'r c`j,f'',-"',l'..':S ~ the Cl a:i.fl 3:rJSi. therefore be C~ i-S'_niSSCC~ b jT ti1-'3 Board -for lack of jurisdic-tion.

In G:~..ose1y scznatinizing the I.;any wr-,1_L reasoned. arguments advanced. by

both sides, we f1rd the Cltv-j'_IrYIt was, un -fact, a21 a,Pnrentice at the twna Carrier
d1.SIri1.SS<:Cl him on October ], 3_Q76_ WC ?'t-:C'C~2Cd t?'1a.S conclusion based on ti~i f3.CT
that no;whmre~ :in en-i. tJaer the cotx'U-}'ol-.il:- a..-,r ee-netxt af 1~.qpr:i.l :1., 19(0 or in vi-1c:
Apprc2tt:i.ceuhip P. -re,:naent of I:.. ~ e:~it~e;~ '! o, l j yT-I, :L:> tii^x a any la.n.r-txa-e ~ah:i.cii
sugr,res'uu the apprenticeshilp rx°o~':.w;~m can lie aborted car shoe t-G.x'CiJlted as a
result o~" an a:,p_pr;:W,ice beznrr hp:-x'adjdo ;re did fdr?d 1?o;rrever3 that the 1aI-r.z?-;e
of several of 'z he Provisions .r oga.rdi rA- ap:N~rentices, ;-hen considered to geuher,
did :ind-1cwte that both parties to the a,~'-°aernent b.-ad contenplated the siu,;:. a,yon
of apprentices 'bE'.a.nr; upgraded T::`1:i lG' Se r"d.:1I''g ttapl.r apprenticeship term.
Carrier therefore acted pro'sarl'-y when :it invoked I?v1e J8(c) as the basis llpon
which C:l_a5srwnt was clis~,aissed from service. In so indin~, we need not deal
with Carrier's procedural objections.

A W A R D

Claim denied.

N.A.I`IOiSAD RAIT1ROAD ADJUSITM-TT BOARD

By Order of Second Division

Attest: Executive Secretwx7
National Railroad Adjustmeryt Board

_,_.-_-~,

1~OS~cxrar:Lf' .uraSCh - ACwCi1_11:i.Stx'at:i.VC E:Su:CStan1:

Dated It Chicago, Illinois, this lath day of June, lU7a.