Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 11046
SECOND DIVISION Docket No. 10845
2-C&NW-CM-'86
The Second Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(Chicago and North Western Transportation Company
Dispute: Claim of Employes:
1. Coach Cleaner Roger A. Cook was denied seniority as a set-up
carman dating from March 30, 1981, when the Carrier violated Rules 14, 28,
145, 147 and the Memorandum of Agreement concerning Non-Discrimination dated
May 1, 1977.
2. That the Chicago and North Western Transportation Company be
ordered to award Coach Cleaner Roger A. Cook a promoted seniority date as a
set-up carman, and seniority lost as a Carman Helper dating from March 30,
1981, plus the difference in the rate of pay that he was deprived of account
being denied promotion from Coach Cleaner to Carmen Helper to a Provisional
Set-up Carmen, until this claim is settled. Also, that Carrier's officers
David Schmidt and Daniel Lopez be properly reprimanded for their actions in
this case.
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 employes 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 initially hired as a Track Laborer on September 6, 1977.
On May 1, 1978, Claimant became a Coach Cleaner at the California Avenue
Repair Facility. On three separate occasions, (March 24, 1980, September 9,
1980 and March 30, 1981) Claimant took the exam to qualify as a Carman. On
three separate occasions, Claimant was told by the General Car Foreman, the
Shop Foreman, and the Superintendent, that he did not pass the exam. The test
battery is a validated exam scored and maintained by the Carrier's Personnel
Department.
Form 1 Award No. 11046
Page 2 Docket No. 10845
2-C&NW-CM-'86
On January 18, 1984, Claimant received a copy of his service record.
That record indicates that on March 30, 1981, Claimant qualified as a Carman.
The Carrier asserts that the entry in the service record indicating that
Claimant qualified for the Carman position was in error and that he, in fact,
failed to pass the exam on three separate occasions. The Carrier further
maintains that the service record involved is a document maintained at the
employe's facility and describes work related activities such as injuries,
disciplinary actions, transfers, etc., and the record involved is not a part
of the employe's personnel file which contains tests administered and their
relative scores.
On February 7, 1984, Claimant filed a charge with the Equal
Employment Opportunity Commission making the same factual allegations as
contained in this Claim and further claiming that the failure to promote him
to Carman was based upon his race and religion. On July 27, 1984 the EEOC
made a determination that there was no reasonable cause to believe that the
allegations of race and religious discrimination were true. Claimant was
given 90 days to institute a lawsuit if he desired. He did not do so.
The Organization claims that the Carrier violated Rules 14, 28, 145,
147 and the Non-Discrimination Memorandum of Agreement dated May 1, 1977.
Upon a close review of the record herein, we are of the opinion that
the Organization has not met its required burden of proof. At best, all that
we are shown is that there was an erroneous entry made on Claimant's service
record. There is no dispute that Claimant took the qualifying exam on three
separate dates and was told each time that he failed to pass the exam. The
Carrier maintains that the records of the exams substantiate those results.
There is nothing in the record to show other than an erroneous record entry on
Claimant's service record. No Rule violations have been demonstrated much
less any showing that Claimant was discriminated against on the basis of his
race or religious beliefs.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest.
ancy J. r -,Executive Secretary
Dated at Chicago, Illinois, this 15th day of October 1986.