NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-25765
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Detroit, Toledo and Ironton Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The disciplinary demotion of Section Foreman R. B. Keefer and
his disqualification as foreman for being absent from duty on August 17, 25,
26, September 1, 2, 3, 23, 27, 29 and October 1, 1982 was arbitrary,
unwarranted and in violation of the Agreement (Carrier's File 8365-1-150).
(2) Mr. R. B. Keefer's seniority as track foreman shall be restored
and unimpaired and he shall be compensated for all wage loss suffered
beginning September 30, 1982 until he is returned to work as a section foreman
with seniority as such unimpaired."
OPINION OF BOARD: Claimant R. B. Keefer assumed the Foreman's position on
August 9, 1982. By letter of September 30, 1982 Claimant
was notified that he had been "disqualified as Foreman of Section 10-Lima.The Carrier based its deci
"Rule 5 - Time In Which To Qualify
(b). . . A foreman who fails to qualify in a
reasonable time, or who is disqualified at any
time, may return to his former position unless such
position is filled by an employee of greater
seniority . . .
The Organization verbally requested and was granted a Hearing without
prejudice to the Rules. It maintained that Carrier disqualification of
Claimant was a disciplinary action without benefit of Hearing. Following the
Investigation held on November 30, 1982 the Organization appealed the Claim
that Carrier action was in response to absenteeism and failure to protect
assignment and therefore Claimant was demoted and reprimanded in violation of
disciplinary Rules 34(a) and 34(e) which state in pertinent part:
"Rule 34 - Discipline
(a) Employees will not be suspended or dismissed
from the service without a fair and impartial
trial; neither will they be held off duty for minor
offenses pending investigation or decision."
Award Number 25936 Page 2
Docket Number MW-25765
With respect to the Claim before this Board, the central issue is
whether Carrier's action against Claimant was a disqualification subject to
Rule 5(b) as the Carrier argues or a disciplinary action subject to Rules
34(a) and 34(e) as the Organization maintains. This Board has carefully and
thoroughly reviewed Rule 5, and Rule 34, as well as the other Rules cited and
issues raised on property. A review of the record as handled on property
documents that in Claimant's position as Foreman, Carrier had Rule support to
determine if Claimant met the position qualifications. Carrier was within its
rights to determine the Claimant was not qualified to maintain the
responsibilities of Foreman as his absenteeism without notice left his
position unprotected. As Claimant was neither suspended or dismissed, he was
not disciplined and Rule 34 was not controlling in the case at bar.
This Board finds the disqualification of Claimant has Rule support
and the justification for Carrier action was affirmed by the testimony as
evidenced in the transcript of the Investigation. Under Agreement Rules on
this property, the Carrier's judgment of fitness with respect to Foreman
allows "disqualification at any time . . . Absent, therefore, evidence that
the actions of Carrier were inconsistent or in violation of the Controlling
Rules of Agreement, this Board must deny the Claim.
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 RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Dev r -Executive Secretary
Dated at Chicago, Illinois, this 26th day of February 1986.'