Form I NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9110
SECOND DIVISION Docket No. 9216
2-MP-EW-'82
The Second Division consisted of the regular members and in
addition Referee Thomas V. Bender when award was rendered.
( International Brotherhood of Electrical Workers
Parties to Dispute:
( Missouri Pacific Railroad Company
Dispute: Claim of Employes:
1. That the Missouri Pacific Railroad Company is violative of Rule 32
and 38 of the June 1, 1960 controlling agreement and unjustly dealt
with and damaged Electrician Apprentice Donna L. Hall when they
arbitrarily terminated her services with the Carrier on May 12,
1980.
2. That, accordingly, the Missouri Pacific Railroad Company be ordered to
compensate Electrician Apprentice Donna L. Hall continuous for eight
(8) hours each and every day at the straight time rate, beginning
May 19, 1980, and
continuing until
the violation has been corrected.
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, 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.
This case involves the termination of Apprentice Electrician D. L. Hall. Ms.
Hall was employed on November 19, 1979 at the Carrier's repair facility in Houstom,
Texas. The Claimant worked as an apprentice frown November, 1979 until April 25,
1980. On the later date Claimant sustained a head injury while on duty. She
was hospitalized for four
(4)
days, remained under a doctor's care until may
17,
1980 when she was released for duty. However, the Claimant was terminated by the
Carrier on may 12, 1980. The letter of termination staffed:
"Effective immediately, your employment with the Missouri
Pacific Railroad has been disapproved and your services
with this company is (sic) terminated."
The letter was signed by the Carrier's Master Mechanic at Houston, Texas, F. R.
Hickersan.
Throughout the organization's documentary support of the Claimant is the
constant allegation that this case should be viewed under the discipline sections
of the applicable agreement. This contention is wholly without merit. Rule
37(c)
of the Appren tice Agreement provides:
Form 1 Award No. 9110
Page
2
Docket No.
9216
2-MP-EW-'82
"If within the first period of training an apprentice shows
no aptitude to learn the trade, he will not be retained as
an apprentice."
The Carrier treats this case as simply the dismissal of a probationary
employe. No particular citation is required for the proposition that an employer
has a free hand with an employs during the probationary period. Ms. Hall's case
does not present the usual dismissal of a probationary employs. Rule
37(c)
places some constraints on the Carrier's discretion to terminate an apprentice
during the first period of the program. Rule 37(c) clearly speaks in terms of
"aptitude to learn the trade". The issue to be resolved here is: Did D. L. Hall fail
to show an aptitude to learn the electrical trade? Tersely stated, the answer
to this question is No.
The Carrier's brief deals with two main propositions: (1) the claimant's
attendance record was not what the Carrier expected of a new employs, and (2)
that Claimant showed no aptitude for the trade because of an, "Inability to step
out of a scooter onto the floor of the shop without injury to (herself)." In
the view of this Referee, such contentions fall short of the mark.
An employer provides work and an employs is obligated to faithfully perform
the job for which employed. This means reporting for duty on time and staying
to the end of the shift. This also means maintaining one's health and arranging
one's personal life to avoid as much as possible, conflicts with the known work
schedule: Perhaps Claimant has fallen down in this area. But, the Carrier
should not have waited until five
(5)
months into the program to make its
position on attendance known to the Claimant. As to the second issue, the
Carrier's brief and exhibits fail to demonstrate a correlation between slipping
an some oil on a rainy day and the Claimant'a aptitude for railroad electronics.
Several cases were presented in support of the Carrier's position. These awards
do not control this case.
In Second Division Award
505+
(Johnson) this Carrier presented the Referee
with evidence of the apprentice's poor performance and aptitude. See page 2 of
that Award. No such evidence was presented here. Second Division Award
8621
(Dennis) was also offered in support of the Carrier's actions. In that case
the apprentice-claimant was given a hearing by the Southern Pacific and the
decision of the Southern Pacific was predicated on the evidence presented.
Second Division Award
9031
(haRocco) does not support carrier's actions.
Apparently Referee
TaROCCO
was provided with evidence of the apprentices,
"...
unsatisfactory performance, poor attendance record and lack of initiative".
The Carrier here presented no such evidence. Such evidence may exist but it was
not submitted and it is axiomatic that the cases here must be decided based on
the record presented.
In this case the record will not support the action taken by the Carrier.
The Claimant shall be restored to the apprentice program at the same level
she occupied on May 12,
1980.
Since this was not technically a disciplinary
termination and we find no basis for believing the Carrier's actions were grounded
in malice or bad faith, no monetary damages are awarded.
Form 1
Page
3
Attest: Acting Executive Secretary
National Railroad Adjustment Board
By iC.~..
~l _ _
rie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 9th day of .Tune, 1982.
Award No. 9110
Docket No. 9216
2-MP-EW-'82
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division