Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
SECOND DIVISION
Award No. 13762
Docket No. 13636
03-2-01-2-36
The Second Division consisted of the regular members and in addition Referee
Nancy F. Eischen when award was rendered.
(Thomas B. Daman
PARTIES TO DISPUTE:
(Norfolk Southern Railway Company
STATEMENT OF CLAIM:
"Norfolk Southern Railroad employee, Thomas B. Daman, began his
employ with this carrier on January 31, 2000, as a highly
recommend person, after successfully completing various tests,
interviews, company physical, and indoctrination. He entered into
an electrician apprentice program and performed as an intelligent,
efficient, conscientious worker, on the job and in his training
assignments. Mr. Daman was a superb employee and recognized as
such by being voted onto the company Safety Committee by shop
manager Mr. Ramey and three other Senior General Foremen, and
other committee members, this induction membership vote was
conducted on May 3. 2000. W Daman had a fine record of excellence
as a Norfolk Southern employee.
Then without cause, employee, Daman, was terminated from
Norfolk Southern Railroad on June 12, 2000, while he was at his job,
building a consist of locomotives for an outbound train.
Questions upon which an award is desired are as follows: A
scheduled Formal Investigation Hearing was never afforded to
employee, T. B. Daman, as per Norfolk and Western Collective
Bargaining Agreement dated June 1, 1985. Formal Investigation
Hearing procedure is at section B. 1. (a through e) of this
Agreement.
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The Student Mechanic Agreement effective May 1, 1971, was
violated in its entirety, including section L (a through d) and Section
3.
Other carrier agreements, enumerated under the Position of
Employee caption of this submission, were violated upon this
employee, because of the unjust termination upon him.
Also federal and state laws which prevent discrimination based on
age were violated by Norfolk Southern Corporation upon employee,
T. B. Daman, because two younger (electrical apprentices) student
mechanics, in age and in seniority, were retained by the Carrier
when W Daman was terminated. Specific violations include Article
I., Section 26. of the Constitution of Pennsylvania and The 14th
Amendment, Section 1. of the Constitution of United States, and
other anti-discrimination laws.
Remedy sought for these violations are: payment of all lost time
wages incurred since the termination, payment for employee
benefits lost, payment for suffering to Mr. Daman and his family
due to the loss of his employment as the sole supporting wage earner
in his family of seven, and full reinstatement to his prior position as
electrician with credited time back to the date of termination. And
any additional remedy deemed appropriate by the National Railroad
Adjustment Board in their Award is requested."
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record and all
the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
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03-2-01-2-36
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Mr. T. B. Daman ("the Claimant") was hired by the Carrier on January 31,
2000, as a student electrician at its Conway Diesel Shop located near Pittsburgh,
Pennsylvania. As such, the Claimant's employment was subject to the terms of a
training program established by the May 1, 1971 Training Agreement between the
Carrier and the International Brotherhood of Electrical Workers (IBEW). Phases
I, II and III of the training program are formal classroom sessions and are usually
conducted at the Carrier's McDonough, Georgia, Technical Training Center. Phase
IV is on-the-job training (OJT) and normally follows the first three phases of
classroom instruction; however, on occasion, a student will receive a few days of
OJT (Phase IV) prior to the classroom training (as did the Claimant for ten days).
Among other provisions, that Training Agreement provided for a 60 day
probationary period in Phase IV, during which student electricians may be dropped
from the program, as follows:
"All student mechanics shall be subject to a probationary period
_durine Phases I II and III and for the first 60 creditable days of
training in Phase IV as defined in Section 4(c) (4) hereof. A student
mechanic who shows no aptitude to learn the trade within said
probationary period may be dropped from the program after review
of his record by the General Chairman of the craft involved and the
Assistant Vice President, Labor Relations, or their designated
representatives."
While the Claimant was still well within the above-referenced Phase IV
probationary period (35'% days by the Carrier's reckoning; 45'/s days by the
Claimant's reckoning), the Carrier notified him of his termination by letter dated
June 10, 2000, as follows:
"This is to advise that you are currently in the probationary period
as defined by Section 3 of your training agreement. One of the
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primary attributes necessary to become a permanent employee with
this Carrier is the ability to properly receive and carry out
instructions.
In view of your performance in this regard, while in training at
Conway Diesel Shop, it has become necessary for us to drop you
from the Student Electrician Training Program and terminate you
from all service with this Carrier."
By letter dated August 10, 2000, which was received by the Shop Manager on
August 14, 2000, the Claimant filed the instant claim alleging that his termination
from the training program was in violation of his rights under the Training
Agreement, the Collective Bargaining Agreement, various state and federal laws
and the United States Constitution. After the initial claim was denied on September
20, 2000, the Claimant appealed the matter to Carrier's Director-Labor Relations,
who is the designated highest level officer to handle such appeals. His appeal letter
was posted on November 27, 2000, and received by the Carrier on November 29,
2000. The final denial dated January 10, 2001 rejected the claim on its merits and
because neither the original claim nor the appeal had been filed in conformance
with time limits set forth in the provisions of Article V, Section I (c) of the August
21, 1954 Mediation Agreement. Some ten and one-half months later, by Notice of
Intent letter dated November 27, 2001 and received on November 30, 2001, the
Claimant appealed the Carrier's denial of his claim to the Second Division of the
NRAB.
The claim suffers from multiple defects in handling which undermine the
jurisdiction and authority of the Division to make any findings on its merits. Even
if, arguendo, the compounded time limit violations in the Claimant's filing and
appealing the claim on the property and failure to conference the claim prior to
submission to the Board were not fatal under Section 2 of the Railway Labor Act
and Circular No. 1, the Claimant did not invoke NRAB jurisdiction until ten months
and 20 days after the January 10, 2001 denial of his claim by the Carrier's highest
designated officer. This is a plain and fatal violation of the nine-month time
limitation for such appeals to arbitration set forth in Article V (c) of the August 21,
1954 Mediation Agreement. Based on all of the foregoing, we are constrained to
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dismiss the claim for lack of jurisdiction, with no further comment. See Second
Division Award 7453 and the myriad supporting authorities cited therein.
AWARD
Claim dismissed.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Dated at Chicago, Illinois, this 1st day of October 2003.