Form 1
NATIONAL
RAILROAD
ADJUSTMENT BOARD Award No.
8166
SECOND DIVISION Docket No.
7981
2-S00-CM-'79
The Second Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
System Federation No. 7, Railway Employes,
Department, A. F. of L. - C. I. 0.
Parties to Dispute:
( (Carmen)
Dispute: Claim of Employes:
Soo Line Railroad Company
1. That under the current agreement the carrier violated Rules 31,
32, 112 and letter of understanding dated January 22,
1948,
File
141-5,
when they demoted temporary Carman Donald T. Susick to
laborer, march 7, 1977.
Findings:
Mr. Susick is now claiming to be returned to his position of
temporary Carman and made whole for his wage loss and time computed
towards his carman seniority date.
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.
Claimant was employed by the Carrier as a Laborer on April 25, 1976,
He was promoted to temporary Carman on January 21, 1977 and was then demoted
to Laborer on March
7,
1977. At the time of his demotion, the Organization
alleges that there were two other employes who had been also promoted from
Laborer still in the position of temporary Ca mien with less seniority than
Claimant.
The Carrier claims that the Claimant, during his six and a half weeks
in the position of temporary Carman,, did not perform in a satisfactory manner
and had a poor attendance record. Nothing in the Agreement, argues the Carrier,
prevents the Carrier from demoting an employe when he fails to qualify during
a trial period.
The Organization claims violation of Rules 31, 32, 112, and a letter of
understanding between the Carrier and the organization dated January 22,
1948.
Form 1 Award No.
8166
Page 2 Docket PTo.
7981
2-SOO-Cry-
179
Rule 31 deals with the presentation of a claim, and no showing of
violation of this rule is made. Rule 32 deals with disciplinary action. The
Carrier properly argues that demotion due to alleged disqualification does
not, in and of itself, constitute discipline. In the particular circumstances
of this dispute, the Board agrees. Claimant was not disciplined. The
question for resolution is whether or not the Carrier had the right, under
the Agreement, to set back the employe to Laborer within the short period he
served as temporary Carmen.
Rule 112 states in part as follows:
"l. In the event of not being able to employ carmen with
four years experience and the regular and helper apprentice
schedule not providing men enough to do the work, the forces
may be increased in the following manner:
2. Regular apprentices who have served four (4) periods of
130 days each and helper apprentices who have served four
(4) periods of 130 days each may be promoted to mechanics
at point employed and will be paid the minimum rate for
carmen, seniority to govern.
3.
(a) Helpers who have had four or more years' experience
at point employed may be promoted to mechacnics, they to
receive the minimum rate for carmen and be given an opportunity
to learn the trade, seniority to govern.
(b) Helpers so advanced will not accumulate seniority
rights as mechanics and their helper rights
will
be protected
until eight
(8)
periods of training of one hundred thirty (130)
days each as carmen have been completed. If retained in the
service as carmen, seniority rights as mechanics will date
from the time of completion of such training, and all rights
as carman helpers will be forfeited.
If the above does not provide sufficient men to do the work,
men who have had experience in the use of tools may be employed.
They will establish no seniority rights as a carman until they
have completed eight
(8)
periods of 130 days each training as
a carman but will. receive the minimum rate for carman during
the training period and may be displaced at any time during
this training period when four-year carmen become available."
In Section
4
of Rule 112, no mention is made as to limitations of
Carrier's rights in demoting an employe who fails to qualify for the new
position. Such reference is, however, found in Rule 15 which deals with
the filling of vacancies by employes already in the service of the Carrier.
Rule 15 states:
Form 1 Award No.
8166
Page
3
Docket No.
7981
2-SOO-CM-t79
"RtrE 15
1. When new jobs are created or permanent vacancies occur
in the respective crafts, the oldest employees in point of
sex-vice shall, if sufficient ability is shown by trial be
given preference in r4 " L7...i
r^ . r
u~'~ ~~--- jobs
or any vacancies
that may be desirable to tnem.
All:
permanent vacancies or new
jobs created will be bulletined. Bulletins must be posted
seven
(7)
days before vacancies are filled permanently.
Employees desiring to avail themselves of this rule will
make application to the official in charge, and a copy of
the application will be given to the local chairman.
2. Temporary vacancies of thirty
(30)
days or more will be
filled by assignment for seven
(7)
days. Senior qualified
employees making application will be assigned in accordance
with Paragraph 1 of this rule.
3.
An employee exercising his seniority rights under this
rule will do so without expense to the carrier; he will lose
his right to the
job
he left; and, if after a fair trial he
fails to qualify for the new position, he will have to take
whatever position may be open in his craft.
4. Employees qualifying to fill temporary vacancies will
revert to their former positions at the expiration of such
temporary vacancy."
Section
3
of Rule 15 clearly refers to a "fair trial", without spelling
out any particular length of service.
The Organization also relies upon a memorandum of understanding dated
January 22,
1948
which commences, "With regard to promoting helpers at
Shoreham to temporary carmen:" and states in conclusion:
"It was also agreed that any helper that was promoted to
temporary carman, and after a fair trial or a period of
30
days it developed that the helper promoted to temporary
Barman could not qualify, he would be demoted to helper. In
each case the foreman would consult the local committee who
should agree before any demotions are made."
The Organization claims that this puts a limit of
30
days as a trial
period, and since the Claimant served more than 30 days on the new position,
he may not be demoted out of seniority. The Board finds two difficulties
with this argument. First, the
1948
memorandum of understanding clearly
refers to helpers. Claimant fras not a helper, but a laborer. While logic
may or may not suggest that the promotion of a laborer should fall under
this understanding, the Board is not empowered to make such extension.
If the parties wish or had wished to include categories other than helper,
Form 1
Page 4
Award No.
8166
Docket No.
7981
2-SOO-CM-' 79
it is they -- not the Board -- who must make the change. Second, the language,
even if applicable to a Laborer, is not as precise as the Organization reads
it. It states "after a fair trial or a period of 30 days". Without pressing
the matter further, this appears to state that a helper's demotion will come
only after a certain period for adaption to the new position.
Nor is the reference by the Carrier to Rule
38
of relevance here.
This deals only with newly hired employes (not applicable to the Claimant)
and the reference to a 60-day period concerns approval of the employe's
application only.
The Board finds that the Carrier's action in this instance is not in
violation of any rule of the applicable Agreement. The Carrier offered
explanation concerning the employe's performance as to why it took the
action. The action eras not arbitrary or capricious, and the Organization
has made no showing that it was unreasonable or discrL-minatory. Cited rules
and the
1948
memorandum are not applicable in this dispute.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
_. _ _
By
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
~Rosemarie Brasch - Administrative Assistant
JDat4 at Chicago, Illinois, this 14th day of November,
1979.