Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28554
THIRD DIVISION Docket No. MW-27179
90-3-86-3-386
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
Machine Operator James Iverson, Jr. shall be compensated for all wage
loss suffered beginning with June 7, 1985 and continuing until he is returned
to his position as machine operator with seniority as such restored and unimpaired because of the Ca
in compliance with the procedural requirements of Article 14 (A) 1 (System
File MW-85-39-CB/53/844)."
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.
The Claimant was disqualified as a Machine Operator effective May 8,
1985, for his involvement in an accident with an automobile at a road crossing. The Claimant was ope
separate notice, the Claimant was withheld from service and issued a thirty
(30) calendar day suspension. The Organization argues the two actions acted
to deprive the Claimant of a fair and impartial hearing as required by Article
14. In effect, the Organization contends the suspension and disqualification
form discipline which must be considered to be in excess of thirty (30) days.
Revised Article 14(a) 2 reads as follows:
"An employe who has been in service in excess of sixty
(60) days may be disciplined by the assessment of demerits or suspension not to exceed 30 days and w
Form 1 Award No. 28554
Page 2 Docket No. MW-27179
90-3-86-3-386
days. An employe thus disciplined may, upon making a
written request within 10 days to the officer author
ized to receive same, be given a fair and impartial
investigation by an authorized Carrier officer. If
no request for investigation is received, the disci
pline will be considered as accepted."
The record reveals the Claimant did not, as required under revised
Article 14, request an Investigation. Analysis of the Organization's position
that the imposition of a suspension coupled with disqualification somehow
voids the clear language of revised Article 14 is without support. Accordingly, the Claimant must be
day suspension.
On May 16, 1985, the Carrier's Regional Engineer advised the Claimant
he was disqualified as a Machine Operator. Article 48, Un=·ust Treatment,
states:
"An employe who considers himself unjustly treated,
other than covered by these rules, shall have the right
of conference with an officer of the department assisted
by one or more duly accredited representatives, provided
a written request setting forth his complaint is made to
his immediate supervisor within sixty (60) days of the
cause of complaint. Failing to dispose of the complaint
in such conference, appeal may be taken in accordance
with Article 15."
From the above, it is evident that if the Claimant believed his disqualification was unjust, he
in Article 48. The Claimant did not. In the interim, a considerable period
of time has passed, and this Board believes the disqualification will clearly
have served its purpose. Accordingly, the Board directs the Carrier to rescind the Claimant's disqua
the Claimant is advised that it has been previously held that the Carrier is
the sole judge of an employee's ability to qualify for promotion as well as to
judge an employee's ability to continue in such a position.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: _
Ancy J ver - Executive Secretary
Dated at Chicago, Illinois, this 27th day of September 1990.