NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Locket Number MW-25102
George S. Roukis, Referee
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Chicago, Milwaukee, St. Paul and Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(Z) The disqualification of Mr. F. N. Fenelon as an assistant foreman
on or about July 30, 1981 was improper and without just, sufficient or reasonable
cause (System File Ck28/D-2512-Z1.
(2l The Carrier shall return the claimant to the position of assistant
foreman 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 assistant
foreman.
*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: Claimant was working as an Assistant Foreman in connection with
a track rehabilatation project. Claimant was demoted to a
laborer's position in July, 1981, as a, result of failure to demonstrate
qualifications as an Assistant Foreman. This is under challenge before the
Board.
The file reveals a failure of Claimant to perform duties to the
satisfaction of his superior. Numerous awards establish that Claimant has the
burden of proof in disqualification cases to establish clearly, wlth sufficient
probative evidence that Carrier was not justified in its action. The record
lacks such required proof.
Moreover, it is not clear whether Claimant's behavior was due to
misunderstanding of duties and their proper performance, lack of communication
between Claimant and his Supervisor, or poor coordination of work. He had
previously functioned in this position without complaint.
Because of the mitigating facts in the record, the Board strongly
believes that Claimant should be provided another chance to demonstrate his
qualification and, if found to be qualified, assigned work in accordance with the
applicable rules and policies on the property. However, under the circumstances
herein, we find no plausible basis for sustaining Part 2 of the Claim. It is
denied.
Award Number 25295 Page 2
Docket Number MW-25102
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 violated.
A W A R D
Claim sustained in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. ver - Executive Secretary
0
Dated at Chicago, Illinois, this 28th day of February 1985.