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Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28025 THIRD DIVISION Docket No. MW-27820 89-3-87-3-333 The Third Division consisted of the regular members and in addition Referee John E. Cloney when award was rendered. (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(The Atchison, Topeka and Santa Fe Railway Company

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that: (1) The Agreement was violated when the Carrier disqualified Claimant G. Smith as a Group 7, Cla (System File 100-8-862/11-1740-40-59). (2) The claimant shall be reinstated on the Group 7, Class 2 machine operator seniority roster and he shall be compensated for all wage loss suffered because of the viol FINDINGS: The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that: The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

As of January 6, 1986, Claimant was used to protect a temporary vacancy on a Model 46 Kershaw Ballast Regulator. At the time, Claimant held seniority as a Group 7, Class 2 machine operator and as a Group 3 trackman. The Model 46 Kershaw Ballast Regulator is one of numerous machines operated by Group 7, Class 2 employees. On January 15, 1986, the Roadmaster sent Claimant a wire stating:

"G. Smith is unable to operate Ballast regulator properly nor meet maintenance standards therefore will not be allowed to operate."

No copy of this message was sent to the General Chairman.

Form 1 Award No. 28025 Page 2 Docket No. MB-27820 89-3-87-3-333

The following Agreement Rules are to be considered:

"RULE 8 - PROMOTIONS, ASSIGNMENTS 6 DISPLACE-

MENTS

8 - (c) - Failure to Qualify.

An employe who accepts promotion to a higher class but fails to satisfactorily perform the duties of the higher class within twenty-five (25) work days will be disqualified. This employe will return to his former position in accordance with Rule 5. All employes affected thereby will be governed by Rule 5.

An employe who is assigned more than twentyfive (25) work days to a position will be considered

An employe who fails to pass the examination s) or who is otherwise disqualified, shall be advised promptly in writing, with copy to the General Chairman, as to the cause or causes of his failure to qualify."

On August 25, 1984, the following Note was added to Rule 8(c) by the parties:

"An employe disqualified under the provisions of this rule after having been assigned more than twenty-five (25) work days to the position, may, within 20 days following'notification of disqualification, request a formal investigation. If the employe requests a formal investigation and his rights, it will be handled as a discipline case."

"RULE 10 - POSITIONS UNDER ADVERTISEMENT AND

UNBULLETINED TEMPORARY VACANCIES

10 - (a) - Vacancies on Positions Under Advertisement and Temporary Vacancies of Thirty Calendar Days or Less as Described in Rule 37-(f). Except as set forth in NOTE below, vacancies on positions under advertisement and temporary vacancies of thirty calendar days or less, that are to be filled, shall be filled by the senior qualified employe of the class working on a lower rated position or furloughed who

Form 1 Award No. 28025 Page 3 Docket No. MW-27820 89-3-87-3-333

desires to protect the vacancy. If there are no

employes of the class who desire to protect the

vacancy, the vacancy may be filled by either

setting up the junior employe of the class who

is working on a lower rated position or by pro

moting an employe of a lower class, pursuant to

Rule 8.

NOTE: Vacancies on Track Foreman positions under advertisement and temporary vacancies of thirty calendar days or less; that are to be filled, shall be filled in the following sequential order:

(1) By the senior employe of the class at the location where the vacancy occurs, who is working on a lower rated position or furloughed."

In its Claim, the Organization contended Rule 8(c) applies and, accordingly, notice of disqualif

"The Carrier did not violate the provisions of Rule 8(c); nor is said rule even applicable in the instant case. This for the reason that the claimant was merely removed from operating the aforementioned machine; he was not 'disqualified' as a Class 2 Operator.

Inasmuch as the claimant had previously qualified on the Model 23 Kershaw Ballast Regulator, it was felt that he also could operate the Model 46 Kershaw Ballast Regulator for which reason he was initially assigned to operate the referred-to machine pending the bulletining thereof. However, when it became obvious to the claimant's supervisor that he was unable to operate the machine in a proper manner and handle the maintenance work involved, he was removed therefrom."

We agree with Carrier that Rule 8(c) does not apply. The Rule requires notice in cases of disqualification of a promoted employee. Here Claimant was not promoted. Rather, a vacancy under advertisement was being protected under the provisions of Rule 10. Claimant retained his Group 7, Class 2 seniority. Read in its entirety, Rule 8(c) does not require notice in instances of disqualification from operation of specific equipment within a category where no promotion is involved. Form 1 Award No. 28025 Page 4 Docket No. MW-27820 89-3-87-3-333

A W A R D

Claim denied. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division Attest Nancy J. D vP.rK- Executive Secretary Dated at Chicago, Illinois, this 10th day of August 1989.