(a) The Pennsylvania Railroad Company (hereinafter referred to as "the Carrier"), violated the currently effective Agreement between the parties, Part II, Regulations 2-B-2 and 6 thereof in particular, by its action in disqualifying and removing Movement Director J. P. Nolan from his position, effective January 22, 1965.
(a) When it develops that an employe who is regularly assigned to a position covered by Part II of this Agreement cannot continue to satisfactorily perform the duties of the position and is removed therefrom, he may exercise seniority under Regulation 3-F-1 subject to agreement between the Superintendent of Personnel and the Office Chairman.
(b) When it develops that an extra Movement Director cannot continue to satisfactorily perform the duties of a Movement Director position or positions, he shall be declared disqualified on such position or positions. Unless disqualified for all service as Movement Director, he shall retain seniority, but shall not be eligible to perform Movement Director service on the position or positions on which disqualified unless and until, in the judgment of Management, he is qualified for such service. If he is declared
In accordance with Regulation 2-B-2, agreement was reached between the Superintendent of Personnel and the Local Office Chairman enabling Mr. Nolan to exercise seniority under Regulation 3-F-1. This agreement was set forth in letter dated January 22, 1965, a copy of which is attached as Exhibit C.
Mr. Nolan believed that an injustice had been done and, therefore, had the matter presented, in writing, by the Office Chairman on his behalf to his immediate superior, Mr. J. A. Hackenbracht, in a letter dated February 2, 1965. A copy of this letter is attached as Exhibit D. The handling of the matter was in accordance with Regulation 2-B-2(d) and 7-A-2(a). Regulation 7-A-2 is quoted and attached as Exhibit E.
The Office Chairman's appeal to the Division Operator was denied by the latter in a letter dated February 3, 1965, reading, in part, as follows:
In accordance with Regulation 7-A-2(b), the Division Operator's decision was appealed to the Superintendent-Personnel, under date of February 6, 1965, and a hearing was scheduled for and held on February 26, 1965. A copy of the letter of appeal is attached as Exhibit F.
Under date of Aprli 17, 1965, the matter was referred to the Manager, Labor Relations, under the provisions of Regulation 7-A-2(c) and Regulation 7-D-1, and discussed at meeting held on May 8, 1965. A copy of the General Chairman's April 17th letter of appeal is attached as Exhibit G.
The Manager, Labor Relations denied the appeal by letter dated July 6, 1965, a copy of which is attached as Exhibit H. In effect, the Manager advised that the Carrier's action in disqualifying the Claimant as Movement Director did not constitute any form of disciplinary action; that the Claimant's service over a period of time was unsatisfactory; and that it had been determined Mr. Nolan could no longer satisfactorily continue in such service.
Ostensibly, the question to be determined is whether the Carrier violated the applicable Agreement when it disquallfied the Claimant as a Movement Director.
In so deciding, the Board will note that it is requested only that "The Carrier . . restore Claimant Nolan's rights as Movement Director unimpaired." There is not now, nor has there been, any claim for compensation on any basis.
OPINION OF BOARD: Claimant was employed as Movement Director in the Movement Bureau at New York. Claimant bad seniority as an Assistant Movement Director and Movement Director from December 1, 1950 and May 20, 1955, respectively, and seniority as a train dispatcher from July 20, 1954.
Upon January 14, 1965, Claimant was advised he was being held out of service pending trial in connection with two alleged excessive delays in the substitution of engines west of Midway, on the 13th and 14th of January, 1965. Carrier, by letter of January 15th, rescinded the notice of January 14th and advised Claimant of the hearing to be held on January 21, in connection with his alleged unsatisfactory past performance of his Movement Director duties and his competency to continue in that capacity. Though held out of service and not required to work, he was to be compensated until said hearing to determine his competency to continue in his position. Carrier advised Claimant on January 22nd, after a hearing, that he could no longer continue to satisfactorily perform his duties as Movement Director and was disqualified from performing this position. As provided in Regulation 2-B-2, Claimant was allowed to exercise his seniority under Regulation 3-F-1, and did so on the position of train dispatcher under date of January 23, 1965.
Claimant appealed Carrier's decision to disqualify him. Appeal was taken under 2-B-2(d) in accordance with Regulation 7-A-2. His appeal was progressed and duly denied, and his claim is now before this Board for adjudication.
Petitioner contends that Claimant was improperly withheld from performance of service by an action which lacked any contractual basis; that he was denied due process, thus prejudicing his interest; and, the actions of Carrier were in violation of the Agreement, Regulation 6=`Discipline" and 2-B-2, Part II-"Removal from Position or Extra List", thereof in particular.
Carrier asserts that Claimant was properly removed, withheld, and disqualified from performance of service, as set forth by Regulation 2-B-2(a); that Regulation 6-"Discipline" is not applicable to the disqualification of an employe for inability to satisfactorily perform the duties of the position; and, that disqualification is not "discipline."
We have reviewed the record and find no restrictions on Carrier's right in the Agreement to remove an employe from a position under Regulation 2-B-2 and subsequently disqualify the employe for inability to satisfactorily perform said duties of that position. Nor do we find that Regulation 6-"Discipline" is the only authority for removal or withholding an employe. Regulation 6 is not applicable, because no discipline is involved in the instant dispute. It is true, as pointed out by the organization, that Claimant's first notice to be withheld conformed with Regulation 6; however, this notice was rescinded by the Carrier the following day, and Carrier elected to proceed in a determination of the Claimant's qualifications or lack of for that position under Regulation 2-B-2(a).
In Award 7283 (Cluster), involving the same parties, the Referee in that Award distinguished Regulation 6-"Discipline" from disqualification on a position of Movement Director whereby the employe in that dispute was disqualified due to loss of ability to perform satisfactorily. Pertinent portions of the Board's finding in Award 7283 in our opinion appropriate under the facts set forth in the instant dispute are as follows:
As in Award 7283 as in the instant dispute, Claimant was not suspended or dismissed from service, but was removed after a hearing and upon being notified, Claimant exercised his seniority under Regulation 3-F-1, and is now filling the position for which he is qualified. Additionally, Claimant relied upon the applicability of Regulation 2-B-2(d), which when an employe is affected by paragraphs 2-B-2(a) of this Regulation, who believes that an injustice has been done and may, if he so desires, progress the matter in accordance with Regulation 7-A-2, in appealing Carrier's decision to remove him from his Movement Director's position. Claimant followed these appeal provisions of Regulation 2-B-2(d) relating to his removal from a position rather than the appeal provisions relating to discipline. From the facts of the record, we do not find that Claimant was denied due process as alleged by the organization because he was required to attend a hearing or because no written transcript was- furnished the organization of either the initial hearing or any of the three additional appeal hearings. To the contrary, the record is clear that the Claimant had been properly represented from the initial hearing date as well as at all levels of appeal by his designated representative as well as having witnesses present to testify in his behalf.
The many awards of this Division hold that the employer is the judge of fitness and ability and whether an employe possesses sufficient fitness and ability to continue in a position is a matter exclusively for the Carrier to determine, and such a determination, once made, will be sustained unless it appears that the action was capricious or arbitrary. Here the Carrier determined that Claimant's shortcomings as set forth by Carrier under date of January 19th covering a list of eight specific failures as Movement Director from April 2, 1964, through and including January 14, 1965. This is substan-
tial evidence to support Carrier's conclusion that Claimant was no longer qualified for the job of Movement Director; therefore, Carrier in the exercise of its management prerogative, under 2-B-2(a), concluded without bias or prejudice, that Claimant was not competent to continue to satisfactorily perform the duties of the position of Movement Director, and removed him therefrom. We find that Regulation 6='Discipline" is not applicable to this case since discipline rules were not involved in the disqualification of the Claimant and, therefore, Carrier's actions in the removal of the Claimant from his position was not a violation of the Agreement, and we will deny the claim.
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