STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Southern Pacific (Pacific Lines), that:
EMPLOYES' STATEMENT OF FACTS: There is in evidence an agreement by and between the parties to this dispute, effective December 1, 1944, reprinted March 1, 1951, including revisions, and as otherwise amended.
Mrs. Frances I. Marr, hereinafter referred to as Claimant, entered the service of Southern Pacific Company, hereinafter referred to as Carrier, on February 28, 1944. Following her employment and in line with the usual practice, she worked on various positions covered by the Telegraphers' agreement as an extra employe. Including in the positions worked were positions involving the operation of interlocked signals and switches. (See page 12 of transcript of hearing-final language on this page.) There is nothing in the
In the above quotations of the claimant's testimony, she indicates she knew the plant layout and had previously lined the Placerville Local out properly on each day she worked on the position involved; however, states she should have recognized, but overlooked the fact that the switch control that went into time controlled two signals. All of which indicates that the claimant did not make the proper move, which resulted in the 10-minute delay to the Placerville Local.
At fourth paragraph on Page 5 of Petitioner's General Chairman's letter of May 10, 1960, he comments that the claimant had no way of knowing that the switch lining out the Placerville Local was in improper position until train crew advised her of the situation and that the delay incurred was not excessive. This statement is absurd considering that no delay would have occurred had the claimant followed same procedure of proper operation of the devices she had used on previous days.
Carrier has pointed out that the rules of the current agreement were properly applied in the disqualification of the claimant, and further that as a result of hearing held at the claimant's request, Carrier was just in upholding Carrier's Division Superintendent's decision affirming the claimant's disqualification.
Carrier has conclusively shown herein the claim is unwarranted and totally lacking in merit, and asks that if not dismissed, it be denied.
Without in any way receding from its position that the claim presented herein is totally lacking in merit, it will be noted that Petitioner's General Chairman in his letter of May 10, 1960 (see Carrier's Exhibit E), added a note to his statement of claim reading:
In this connection Carrier asserts the need for a joint check of Carrier's records to determine compensation due the claimant is unnecessary as the Carrier is fully capable of furnishing a statement of earnings without a joint check of records by a second party.
OPINION OF BOARD: On December 11, 1959, Carrier advised Claimant by letter that she was disqualified, effective same date, from working the Telegrapher-Clerk-Towerman position at Elvas, California.
The issue presented here is whether Claimant's rights were violated by the Carrier when it removed and disqualified the Claimant from the third shift Telegrapher-Clerk-Towerman's position at Elves, California, under Rule 19, Sections (a), (b)1, and 2, and (f), thereby denying the Claimant a right to a hearing as prescribed by Rule 26-Discipline, Sections (a) and (b)1. 13855-51 410
The Board finds that the provisions of Rule 19, relied upon by the Carrier, support its position in the instant dispute. Carrier had the responsibility and the right to determine the fitness and ability of the Claimant to fill the position at Elvas and the right to determine competency, once assigned to the position. Once assigned, by Rule 19, Section (f) of the agreement, an employe can be disqualified "if an assigned employe proves incompetent . . . ."
Upon receipt of the disqualification notice, Claimant requested a hearing as provided by Rule 19, Section (b)1. Carrier conformed with Rule 19 (b)2, following the hearing, by properly notifying Claimant that her disqualification was upheld. 13855-52 411
We take no issue with the Organization's statement that "various Divisions of the Adjustment Board have consistently held that a person charged with an offense is entitled to know the nature of the charge." But Claimant was not charged with an offense under which she might have been dismissed or discharged from the Carrier's service. The case at hand is not a discipline or dismissal charge but clearly one where the Claimant was disqualified upon the grounds of failure to perform her duties in a satisfactory manner.
Testimony relating to Claimant's unsatisfactory performance of her duties, on five separate occasions, was given at the January 7, 1960 hearing, at which time Claimant was properly represented. Claimant had the burden of proof to rebut Carrier's allegations of incompetency. This she failed to do, therefore, we find no violation of Claimant's rights under the provisions of Rule 19, nor was Carrier's action unreasonable or arbitrary.
Discipline rules were not involved in the disqualification of the Claimant, therefore, Carrier was under no obligation to proceed under Rule 26.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and