0


j
                            THIRD DIVISION Docket Number MW-24221


                        Martin F. Scheinman, Referee


                    Brotherhood of Maintenance of Way Employes

      PARTIES TO DISPUTE:

                    (Seaboard Coast Line Railroad Company


      STATEMENT OF CLAIK: "Claim of the System Committee of the Brotherhood that:


      (1) The Carrier's disqualification of Assistant Foreman Larry Alexander as assistant foreman on Extra Force 9226 at the close of work on October 5, 1979 was improper, without just, sufficient or reasonable cause and in violation of the Agreement (System File 37-SCL-79-99).


      (2) The Carrier shall return the claimant to the position of assistant foreman on Extra Force 9226 and shall compensate him at the assistant extra gang foreman's rate beginning October 6, 1979 until he is restored to the position of assistant foreman on Extra Force 9226."


      OPINION OF BOARD: Claimant, L. Alexander, was initially employed by Carrier as

      a trackman, effective January 22, 1971. In October 1976,

      Claimant was promoted to the rank of Apprentice Foreman. According to Carrier,

      Claimant bid on an Assistant Foreman's position on Extra Gang 9226 in August 197'(,

      but disqualified himself and exercised seniority as a Trackman.


      The Organization contends, however, that Claimant successfully bid on the Assistant Foreman's position in August 1977 and occupied it for over two years prior to the date this claim arose. In either case, both parties agree that from at least December 19, 197'( to May 15, 1978, Claimant worked as an Assistant Foreman on Extra Gang 9226. At that time, Claimant bid on the Foreman's position on Section Force 5661. That position was abolished on November 11, 1978 and Claimant returned to the position of Trackman.


      On April 2, 1979, Claimant bid on a Foreman's position of Extra Gang 9226, but was disqualified on May 11, 1979. He was subsequently reassigned as Assistant Foreman to Extra Gang 9226. However, by letter dated October 2, 1979, Carrier disqualified Claimant from that position, effective October 5, 1979.


      The Organization contends that Carrier's disqualification of Claimant from the position of Assistant Foreman to Extra Gang 9226 in October 1979 violated the Agreement, particularly Rule 6, Section 2 and Rule 12, Sections 1 and 4. Those rules read, in relevant part:


"RULE 6

ESTABLISHMENT OF SENIORITY


            SECTION 2

            Employees upon promotion to a higher rank will establish seniority in the higher rank as of the day assigned to such

                        Award Number 24267 Page 2

                      Docket Number PEA-24221


        bulletined position, in accordance with Rule 8, Section I, and Rule 12, Section 1+."


                          "RULE 12

                          PROMMION


        SECTION I

        A promotion is an advancement from a lower rank to a higher rank.


        SECTION 4

        Employees accepting promotion will be given a fair chance to demonstrate their ability to meet the requirements of the position; if failing to so qualify within sixty (60) calendar days the position will be declared vacant, and the employee may return to his former rank in accordance with Rule 13, Section 3."


The Organization maintains that Claimant was promoted to the position of Assistant Foreman on August 1, 1977. Thus, Carrier had sixty days from that date in which to disqualify Claimant. This Carrier did not do. Therefore, in the Organization's view, Carrier failed to timely disqualify Claimant when it notified him in October 1979, some twenty-six months after he established seniority as an Assistant Foreman, that he.was being disqualified from that position.

 In addition, the Organization notes that seniority rights in the Track Subdepartment are defined by rank. Rank 2 is "Assistant Foreman". There is no additional delineation of that title - e.g. - "Assistant Foreman - Extra Gang". Thus, the Organization argues that the Claimant successfully filled the position of Assistant Foreman for over two years without complaint. Therefore, according to the Organization, Carrier may not now simply disqualify Claimant from his position as an Assistant Foreman on Extra Gang 9226 without providing him with a formal notice of charges and hearing in accordance with Rule 39 of the Agreement.

 Carrier, on the other hand, contends that it acted reasonably and in conformity with the Agreement when it disqualified Claimant from the Assistant Foreman position on Extra Gang 9226 in October 1979. First, Carrier asserts that the duties of an Extra Gang Assistant Foreman are much greater and more complex than those of an Assistant Foreman on Section forces. For example, an extra gang frequently is scheduled to perform heavy construction work not required of section forces. In Carrier's view, while Claimant may have performed satisfactorily as an Assistant Foreman in certain instances, he did not perform satisfactorily as an Assistant Foreman on Extra Gang 9226. His unsatisfactory performance was noted by several supervisors.

 In addition, according to Carrier, Claimant was given a reasonable period of time to learn all the phases of this job, but he failed to do so. Thus, Carrier contends that it acted neither arbitrarily nor capriciously when it disqualified Claimant from the position of Extra Gang Assistant Foreman in October 1979.
                        Award Number 24267 Page 3

                        Docket Number MW-24221


Carrier also maintains that if Claimant had felt unjustly treated by its actions, he should have sought a hearing within ten days of Carrier's disqualification protesting its unfairness. This Claimant failed to do. Thus, in Carrier's view, even if Carrier was obligated to issue a notice of discipline in this case, Claimant's failure to request a hearing within the appropriate time limits invalidated his later claim. In all, Carrier asks that the claim be dismissed.

 It is true, as Carrier argues, that it must be given wide latitude in determining whether its employes perform their jobs satisfactorily. It is equally true that Carrier's determination, in October 1979, that Claimant was unfit for the position of Assistant Foreman on Extra Gang 9226 was neither arbitrary nor capricious. However, the central issue before us is whether Carrier had the rights under the Agreement, to disqualify Claimant from that position at that time, without the benefit of a formal notice of discipline. We believe that it did not.

 The record evidence reveals that when Claimant first began service as an Assistant Foreman, he received a promotion in accordance with Rule 12. It is equally clear that Claimant was the successful bidder for the position of Assistant Foreman and that he occupied that position for more than sixty days. Thus, pursuant to Rule 12, Claimant qualified for the position and could not be removed except by notice of discipline and hearing pursuant'to Rule 39.

 Cariier argued that the responsibilities of an Extra Gang Assistant Foreman were far more demanding than those of an Assistant Foreman on section forces. This may well be so. However, Rule 5 does not distinguish between different types of Assistant Foremen. Thus, an employe who occupies the position for more than sixty days, regardless of whether it is in the section forces or on an Extra Gang, must be deemed to have qualified for it.

 In addition, the record evidence reveals that Claimant did in fact occupy the specific position of Assistant Foreman on Extra Gang 9226 from December 1977 until may 1978. Therefore, Claimant occupied the specific position from which he was later disqualified for more than sixty days. Accordingly, even if Claimant had to qualify for that specific job, he did so by occupying it from December 1977 to May 1978.

 Finally, we note that Claimant did not invalidate his claim by failing to ask for a hearing within ten days from the time it disqualified him. Carrier improperly disqualified Claimant. It did not discipline him. Had it done so, he would have had to timely request a hearing. However, Carrier's actions violated Rules 6 and 72 of the Agreement, not Rule 39 - Discipline. Claimant timely filed a claim as to those violations. Accordingly, Claimant did not forfeit his right to relief by not requesting a hearing.

        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;

                        Award Number 24267 Page 4

                        Docket Number MW-24221


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

        That the Agreement was violated.


                          A W A R D


        Claim sustained.


                            NATIONAL. RAILROAD ADJUSTMENT BOAID


                                3y Order of Third Division


Attest: Acting Executive Secretary

        National Railroad Adjustment Board


y
 Rosemarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 23rd day of March 1983.
Cr

 Chico (30
      O~y~