NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-24543
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Chicago South Shore and South Bend Railroad
STATEMENT OF
CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The disqualification of Mr. D. E. Poland as a machine operator
on April 25, 1980 was improper, without; just, sufficient or reasonble
cause.
(2) The 'Carrier shall return the claimant to the position of
machine operator and shall reimburse him for the net wage loss* suffered
from the date of disqualification until the date he is restored to the
position of machine operator.
*Net wage loss is the difference between what he would
have been paid at the machine operator's rate of pay
and what he was paid at the laborer's rate of pay for
the period he has been withheld from the position of
machine operator."
OPINION
OF BOARD: The Claimant Poland was the successful bidder for a
position vacancy in accordance with the bidding procedure
contained in the collective bargaining agreement, about which there is no
dispute.
He was awarded the position effective April 9, 1980. However,
by letter of May 2, 1980, the General Chairman was advised that Claimant had
failed to qualify for the position in that:
"He demonstrated insufficient ability by examination
and performance. Mr. Poland has failed the Small
Machine Operator test three (3) times, with scores
of 54, 65 and 61;1 out of a possible 100. All other
candidates for this position passed this basic
examination.
Also, Mr. Poland has been observed operating various
equipment and appears to be unaware of what is expected
of him in the performance of his duties. He has
attended several instructional classes for this purpose."
Award Number 24516 Page 2
Docket Number MW-24543
The relevant portions of the contract are as follows:
"Rule 28. Basis for Promotion
a. Promotion shall be based on ability, merit and
seniority; ability and merit being sufficient
seniority shall govern; the Management to be
the judge, subject to appeal.
b. Employees accepting promotion and failing to
qualify within thirty (30) days may return
to their former position without loss of
seniority."
"Rule 44. Machine Operators
Machines to be operated by Machine Operators are as
follows:
Concrete Cutter Power Spike Puller
Power Track Wrench Joint Oiler
Tie Adzer Tie Sprayer
Tie Boring Machine Tie Remover
Tie Inserter Power Jack
and such machines in this general classification as may
be added to the list from time to time.
In order to qualify, Machine Operators must have a
general working knowledge of the machines in this
classification; must have ability to operate these
machines and to perform such other duties as are
normally assigned Machine Operator; must have ability
to make minor repairs and adjustments to machines;
and must,be. in possession of a valid chauffeur's
license
..."
The Employes, on behalf of the Claimant contend that:
1) "the claimant was never afforded a reasonable opportunity to
demonstrate his ability
...";
(he) "only operated the Tie Boring Machine for one
hour during the time he was assigned to this position".
2) "the Claimant was promoted
...
and subsequently disqualified
...
thirteen (13) days later
...",
contrary to Rule 28 which requires a thirty
(30) day qualifying period.
Award Number 24516 Page 3
Docket Number MW-24543
3) "the claimant was not afforded any assistance or guidance from
the Carrier or a reasonable opportunity to gain practical experience once he
had been assigned
..."
4) the use of a written examination by the Carrier was improper and
arbitrary and is an attempt to unilaterally amend Rule 44.
5) since the Carrier promoted the Claimant for temporary periods
as well as to fill the job vacancy it is indicative of proven job performance
and therefore the retroactive assessment of poor performance is specious and is
evidence of prejudgment on the part of the Carrier to the detriment of the
Claimant.
The Board, however, finds to the contrary on all contentions.
Treating these positions seriatum:
1) Whether or not the Claimant operated the Tie Boring Machine only
one (1) hour is irrelevant. (And there was no agreement or probative evidence
adduced to substantiate either party's position in this regard.) The Carrier
determined that the Claimant was not qualified based upon prior observation of
poor performance and upon his repeated failures to pass an examination which all
°other bidders had successfully mastered. The examination was designed to test
acquisition of knowledge taught in specific instructional classes and consisted,
each time, of the identical twenty (20) questions dealing with small machines.
His third attempt ended in failure on April 30, 1980 just prior to issuance of
the disqualification letter noted above.
Moreover, the Carrier introduced unrefuted evidence that the Claimant
had worked sixty-seven (67) prior days on temporary assignment as a Machine
Operator during 1979 and 1980. This certainly indicates that the Carrier had
ample opportunity to observe his work and the Claimant similarly had adequate
chance to demonstrate his capabilities.
2) The letter of assignment dated April 7, 1980 awards the Machine
Operator position to the Claimant, effective April 9. The letter of
disqualification is dated May 2, 1980. The Grievance letter from Everett Lawson,
General Chairman states that he was disqualified on April 25, which is thirteen
(13) working days later. Obviously this action was not related to the second
test failure, on March 20, 1980, since the promotion occurred in the interim
and the third examination on April 30 had not been taken.
The basis for disqualification must then be ascribed to the deficiencies of work performance as
within the Carrier's authority to remove the Claimant from this position,
subject to the appeal procedure. It would be an absurd construction of the
labor agreement to require the Carrier to retain the Claimant in his new
position for thirty (30) days despite the Carrier's conclusion that he was
unqualified to be in that position. The Claimant has thirty (30) days within
which to prove his competence. If within that period he demonstrates his
incompetence the Carrier cannot be obligated to continue his employ in such a
position where he may jeopardize himself, other employes, the Carrier's
productivity or, to whatever degree, the general public.
Award Number 24516 Page 4
Docket Number MW-24543
3) The Claimant was not only afforded reasonable opportunities to
qualify for the position, he was extended very generous forms of accommodation
by way of classes, instructor's tutoring, home study assistance and quite
liberal scoring exams.
4) With respect to the written examination, although this is a
recent practice on the part of the employer, there is no language in the
agreement which prohibits the Carrier from instituting such a practice for
purposes of training and evaluation, and this is consistent with the
present provisions of Rule 44.
5) Simply because the Claimant has been used in the past on temporary
assignment to perform certain duties of Machine Operator is no reason to conclude
that he is capable of performing all the duties on a permanent basis. Moreover,
the Carrier's willingness to assign the Claimant to Machine Operator's duties
for temporary periods and to award the promotion to him so that he might have
the opportunity of demonstrating his competence and abilities' indicates that he
was not prejudged unfit for the job without trial.
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 Adjustment Board has jurisdiction over
the dispute involved herein; and
That the Agreement was not violated.
A W A R D
Claim denied.
NATIONAL RAI&OAD ADJUSTMENT BOARD
By Order of Third Division
,,`` gE C E I IIE40
Attest:
Nancy J ever - Executive Secretary
Dated at Chicago, Illinois, this 22nd day of September, 19 /c~9o Off-ice
-gM~
