Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No.
8716
SECOND DIVISION Docket No.
8671
2-SPT-CM-'
81
The Second Division consisted of the regular members and in
addition. Referee James F. Scearce when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That the Southern Pacific Transportation Company (Texas and Louisiana
Lines) violated Rule
34
of the controlling agreement when Carman
Apprentice L. D. Pinson was unjustly terminated from service on
December
27, 1978,
and following investigation held on February 1,
1979,
was returned to service on February
16, 1979,
but request to have the
charges removed from his personal record were denied.
2.
That accordingly, the Southern Pacific Transportation Company (Texas and
Louisiana Lines) be ordered to remove the charges, which are shown as
sustained, from Carman Apprentice Pinson's personal record and be replaced
with "not guilty of charges" on letter dated February
16, 1979
(Exhibit:
"J", attached).
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.
Claimant was employed as an Apprentice Carman on September 11,
1978.
On
October
23, 1978,
while on duty and under pay, the Claimant was injured by an
explosion unrelated but proximal to his work location. He was immediately out of
service. By means of a letter dated December
27, 1978,
the Claimant was terminated
on the basis of not having demonstrated the aptitude to learn the Carmen trade.
A grievance was instituted demanding an investigation. After several delays due
to the Claimant's non-availability made necessary by surgical events related to the
injury, the investigation proceeded on February 1,
1979,
in the absence of the
Claimant. The result of such investigation was to return the Claimant to duty
February
16, 1979.
The dispute herein results from the Carrier's refusal to expunge
the charges of lack of aptitude from the Claimant's personnel record.
Form 1
Page 2
Award No.
8716
Docket No.
8671
2-SPT-CM-'81
Essentially, the Carrier's
judgment that
the Claimant was incapable of learning
the trade was made on the basis of work observed over a period of time worked from
September 11 to October 23,
1978.
The Carrier asserts authority to effect termination
under Rule 39(g) which states, in pertinent part that "If within the first
service period of 122 days an apprentice shows no aptitude to learn the trade, he
will not be retained as an apprentice."
This Board is moved to conclude that the Carrier's actions were not supported
by a showing that the Claimant had the opportunity to demonstrate such aptitude -or a lack of it. We are mindful that Rule 39 (g) defines the trial or testing
period as being "within the first service period of 122 days ..." (underlining
ours), but we cannot ignore the event that rendered him unable to prove, or disprove,
such capability. Without further comment, we order that the Claim be sustained as
written.
A W A R D
Claim sustained.
Attest: Executive Secretary
National Railroad Adjustment Board
By
----Ifolsemarie Brasch - Administrative Assistant
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated `at Chicago, Illinois, this 6th day of May, 1981.