NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
John B. Criswell, Referee
PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN
SOUTHERN PACIFIC COMPANY
(Pacific Lines)
STATEMENT OF CLAIM: Claim of the General Committee of the
Brotherhood of Railroad Signalmen on the Southern Pacific Company (Pacific
Lines) that:
(a) The Southern Pacific Company violated the agreement between the Company and the Employee of the Signal Department rep.
resented by the Brotherhood of Railroad Signalmen effective April 1,
1947 (reprinted April 1, 1958, including Revisions), and particularly
the Memorandum of Agreement covering the Assistant Signalmen's
Training Program effective September 1, 1965, specifically paragraph
3, in part provides, "assistants who fail to pass any of the progressive
examinations will be given a re-examination on the portion which they
failed within thirty (30) days from the date of failure". Also paragraph 6(b) in part which provides, "Examinations provided for in
this agreement will be fair and impartial". Also Rule 70 of current
schedule Agreement which provides for reimbursement for loss of
earnings due to violation or misapplication of any portion of this
segment.
(b) Mr. Gish and Mr. Williams be reinstated to service of the
Signal Department of Southern Pacific Company, with all rights
restored, and be compensated for lost wages which has resulted from
their improper dismissal also that both men be advanced one step in
the Assistant Signalmen Training Program and given stduy material
for next step of Training Program. (Carrier's File: SIG 133-18)
EMPLOYES' STATEMENT OF FACTS: March 27, 1968, Assistant
Signalmen M. D. Gish and R. A. Williams who were working at Sacramento,
California were given their 1st-2nd progressive examination under provisions
of an Assistant Signalmen's training program which became effective September 1, 1965. Passing score on the examination was 70 percent. Both assistants failed to make a passing score of 70 percent.
June 24, 1968, they were re-examined as required by the Assistant training program, the pertinent parts of which read as follows:
May 18, 1966, prior to its being applied in the manner now complained of, and thus without question well-known to the Organization.
Prior to the submission of these claims, the Company had every right
to believe that the Organization fully concurred in the manner in
which re-examinations were being graded and the manner in which the
agreement provisions in this respect were being interpreted.
During the time the training program agreement has been in
effect, your Organization has been kept fully informed as to the
manner in which it is being administered by the Company. You have
been and are being furnished copies of records being kept by the
Company as to the status of individual assistant signalmen under the
program so that you may be fully informed. Since the program was
established in 1965, a number of amendments and revisions have been
made in the agreement at your informal request, to deal with problems
that have arisen, including a revision of this agreement signed October
21, 1968, in which the provisions of paragraph 3 having to do with
grading of re-examinaticns was, at your request, revised, effective
November 1, 1968.
Every effort has been made and will continue to be made by the
Company to administer this program in a fair and impartial manner
within the framework of agreement provisions. The claim presented
is without proper basis and is denied."
Copy of the General Chairman's reply to that letter, dated November 27
1968, is attached as Carrier's Exhibit K.
(Exhibits not reproduced.)
OPINION OF BOARD: The facts and circumstances in this case are
parallel to those in Award 18124. Thus we adopt the opinion and findings in
that Award.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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 Adjustmcnt Board has iurisdiction over the
dispute involved herein; and
That the Agreement was violated.
AWARD
Claim sustained to the extent indicated in the Opinion and Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Schulty
Executive Secretary
Dated at Chicago, Illinois, this 30th day of September 1970.
18125
CARRIER MEMBERS' DISSENT TD AWARDS 18124,
IS125
(Referee Criswell)
As Award 18124 clearly shows on its face, the controlling agreement
simply- reserved to these Claimants a right to be re-examined within 30 days
on the portions of the examination which they failed. It is frankly admitted
that each one of the Claimants was in fact given a timely re-examination on
all the parts of the examination he originally failed and that each of them
again failed miserably. While the passing grade was 70%, Claimant Gish
scored 48.4% on the re-examination; Claimant Williams scored only 61.670
on the re-examination; and Claimant Richardson scored only 53.45,.
'Ihe claims are partially allowed on the flimsy pretext that the Claimants'
rights were violated by the mere fact that in addition to being given a
graded re-examination on the portions of the examination which they originally
failed, Claimants were given an ungraded refresher examination on the portions which they did not originally fail. There is no dispute about the fact
that Claimants were
fill
allowed ample time to answer all questions, both
graded end ungraded. There is no showing that prcyudice did result or could
possibly have resulted from the answering of the ungraded questions. Through
some oversight on two of Carrier's Divisions, the employes who were reexamined after failing the examination were only required to answer the
questions previously failed, and there is no showing that the percentage of
employes who passed the second examination on those two Divisions was significantly different from the percentage who passed on the majority of Divis`ons where all questions were answered. As a rnattcr of fact,Petitioner has
only unentioned a sin;ale employe who passed the second examination on
those tyro Divisions.
Tfhc questions thus presented are simply whether any agreement right of
the Claimants was violated by the mere fact that they were required by
Carrier to take an ungraded refresher examination on portions of the examination which they nri=-finally answered correctly: and if so, the damages
properly- allownblc.
Significantly,
the Employes cited no rule of the agiecment that prohibits
Carrier from giving an employe an ungraded refresher examination. In the
absence of such an ac·reement restriction it is well establisbeed by the decisions
of this Board that Carrier may require employ" to tala· examinations.
These awards are palpably erroneous because no rule of the agreement
prohibited the giving of the ungraded refresher examinaticn. They are also
erroneous because the precise procedure that was followed in ghing the
examination was discussed with the General Chairman and was admittedly
acquiesced in by him and all employes affected diving the years immediately
following the adoption of the rules involved. Claimants themselves found
nothing wrong with this procedure find neither they nor any other employe
voiced an objection thereto until after these Claimants had failed their examination and the scent of an unjust monetary clahn was in the air; Claimants
should therefore be estopped from prosecuting the claims.
Finally, these awards are erroneous because Claimants failed to urova
that taking the refresher in any way interfered with their efforts to achieve
a passing grade on the graded questions. No causal relationship was ever
established between the giving of the ungraded refresher and Claimants'
18125 6
failure to pass the graded portion of the examination. Hence, even if the
giving of the refresher had been a violation of the agreement, it would have
been a purely technical violation which would not have caused any loss other
than the actual time required to answer the ungraded questions.
The claims submitted were obviously invalid and should have been denied
in their entirety.
G. L. Naylor
R. E.
Black
P. C. Carter
W. B. Jones
G. C. White
Keenan Printing Co., Chicago,
Ill. Printed in U.S.A.
18125 7