Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28101
THIRD DIVISION Docket No. CL-27287
89-3-86-3-387
The Third Division consisted of the regular members and in
addition Referee Martin F. Scheinman when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Chicago and North Western Transportation Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10109) that:
1. Carrier violated the Agreement Rules, particularly Rule 8, when it
disqualified Mr. J. A. Walsh from Position ##002, Roadmaster's Clerk at Cedar
Rapids, Iowa, without affording Claimant Walsh the sixty (60) days in which to
qualify for said Position ##002, and
2. Carrier shall now be required to compensate Claimant Walsh for all
time lost as a result of the disqualification, as well as the difference in
the rate of pay beginning with date of November 7, 1984, and for each day
thereafter until such time as this matter is resolved."
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.
On October 1, 1984, Claimant began his sixty calendar days "time in
which to qualify" period for the position of Roadmaster Clerk at Cedar Rapids,
Iowa. The Organization contends that Carrier improperly disqualified Claimant
from the position in violation of Rule 8 of the Agreement. Rule 8 reads in
pertinent part:
"Employes entitled to a position under schedule rules
will be allowed sixty calendar days in which to qualify
...
This will not prohibit employes being removed prior
to sixty calendar days when manifestly incompetent. Employees will be given full cooperation of depa
and others in their efforts to qualify."
Form 1 Award No. 28101
Page 2 Docket No. CL-27287
89-3-86-3-387
The Organization argues that Carrier did not establish that Claimant
was manifestly incompetent. It further argues that three payroll errors does
not constitute proof that Claimant did not possess the skills required to per
form the job. The Organization contends that the incumbent Clerk worked with
Claimant for seven days and on November 7, 1984, he was advised that he was
disqualified. As such, the Claimant was never shown to be "manifestly incompe
tent", did not receive full cooperation of department heads and was removed
without benefit of the sixty calendar days in which to qualify for the posi
tion.
Carrier maintains that Claimant was properly disqualified from his
position in accordance with schedule rules. It argues that Claimant was given
an adequate degree of training for the position and was afforded full cooperation to assist him in m
during the Hearing, Claimant acknowledged that he made several errors on important documents which i
was properly disqualified. Accordingly, it asks that the Claim be denied.
After a review of the record evidence, this Board concludes that we
must uphold the organization's position. While it is true that Claimant made
three errors on Carrier documents, such occurred during the first payroll
period that Claimant worked the position. The intent of Rule 8 is to afford
the opportunity to employees to qualify for assignments that their seniority
entitled them to hold. A complete review of the record evidence does not
establish that Claimant was failng to learn the position or could not do so,
if provided with proper supervision. This Board cannot find clear and convincing evidence that Claim
Therefore, on the record as a whole, the organization has provided
sufficient evidence to substantiate that Claimant was not manifestly incompetent. Accordingly, Claim
Clerk and provided with a full sixty calendar day training. During such
period, he shall receive full cooperation of department heads and others in
his efforts to qualify for the position.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
4~z
Nancy J. v -Executive Secretary
Dated at Chicago, Illinois, this 11th day of September 1989.
LABOR MEMBER'S CONCURRENCE AND DISSENT TO
AWARD NO. 28101, DOCKET CL-27287
(REFEREE M. F. SCHEINMAN)
The Majority opinion has correctly analyzed the facts of the
case and determined that the Carrier violated the Agreement for which
there must be a remedy. Unfortunately, that remedy is a compromise
which encourages the Carrier to further violate the Agreement.
The Majority first states that we must uphold the Organization's
position because there was no proof that Claimant was properly trained
or advised of any inadequacies. Therefore based upon the entire
record which includes an Unjust Hearing the Referee fashioned a
remedy which restored the Claimant to Position #002, Roadmaster's Clerk
allowing him a full sixty calendar days training with full cooperation
of supervisors and others in his efforts to qualify for the position.
To that extent the remedy was fine, the problem however, is it did
not go far enough.
As pointed out to the Referee in oral presentation an Award
which sustains the organization's position in regards to Rule 8
also sustains our argument that the Carrier issued an incorrect decision
regarding Rule No. 22 (Unjust Treatment Rule). Rule 8 & 22 go together
like hand and glove. If you sustain one you sustain the other as well.
Thus it logically follows that not only did the Board determine that
Rule 8 was violated, but so was the decision rendered after the Hearing
conducted in accordance with Rule 22. Rule 22 (a) grants the Claimant
the same privileges as Rule 21, which clearly means that if the final
- 1-
Award 28101
Docket CL-27287
decision of the Carrier is not sustained the Claimant is to be made whole
for loss of earnings. This Board determined years ago, in Lead Decision
Award No. 13837, that where a rule provides for payment of a violation of
the Agreement, that it is not within our privy to determine payment or
nonpayment of a violation, but that instead we are obligated to compensate
the Claimant as the rule requires. Rules 8 and 22 were violated and they
require the Claimant to be made whole for loss of earnings. The rule does
not leave to the Board's discretion the determination of monies owed, but
instead requires eforcement of the rule.
It is commonplace within the industry that the Claimant be made whole
for loss of earnings in fitness and ability cases and whenever, in those
isolated instances the Board fails to make a Claimant whole for loss of
earnings, we are sending an incorrect message to the Carrier. We are telling
them that it is permissable go ahead and violat the Agreement if it is
economically advantageous because the chances are we won't make you pay for
the violation.
The compromise offered in this decision is not palable and will lea to
the promulgation of further grievances. It is because of such we concur in
part, but strongly disagree with the failure of Award 28101 to sustain that
portion of the Claim which requested compensation.
Respectfully submitted,
William
-2-
Award 28101
Docket CL-27287
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER'S CONCURRENCE AND DISSENT
TO
AWARD 28101, DOCKET CL-27287
Dissenter asserts that the remedy provided in this case, "is
a compromise" and he doesn't like it.
However, the basis for the objection comes not from the
Referee's perceived misapplication of the facts or the contract,
but that the Referee did not rely on an argument FIRST RAISED in
"Oral presentation" before this Board.
Obviously, such an argument was not raised/handled "on the
property" and as the NRAB has pointed out to the Industry and the
Parties, its function is to review the on-property record.
Dissenter's contention is a nullity.
Secondly, Dissenter asserts that, "Rule 8 and 22 go together
like hand and glove" and that it is "commonplace within the
industry" to provide additional compensation. Again, the Claim
submitted to this Board concerned Rule 8 and Claimant was
accorded a hearing with right of appeal under Rule 22. The
conclusion made in Award 28101 was that "...Claimant was not
manifestly incompetent" and was entitled to "a full sixty
calendar day training." That is what is provided by Rule 8.
P. V Varga M. W. Fingerh
L. Hicks M. C. Lesnik
J. E.·Yost