Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28728
THIRD DIVISION Docket No. SC-29122
91-3-90-3-47
The Third Division consisted of the regular members and in
addition Referee James E. Mason when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM: "Claim on behalf of the General Committee of the Brotherhood of Railr
On behalf of D. L. Landis, for reinstatement to service and payment
of time and benefits lost, plus interest on the monies, account of Carrier
violated the current Signalmen's Agreement, as amended, particularly APPENDIX
'H', when it dismissed him from service for failure to pass the 2nd examination of Step 2, of the Tr
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.
Claimant entered Carrier's service as a pre-trainee Helper on July 8,
1985. As such, he was subject to the terms and conditions of Appendix "H" to
the Rules Agreement of September 1, 1981. .Appendix "H" itself to a negotiated
Agreement which had been made by the parties on December 14, 1976, for the
purpose of establishing an education and training program to provide the Carrier with skil
Appendix "H" consists of more than eight sCngle spaced pages which sets forth
in considerable detail the terms and conditions of the education and training
program. In this dispute, we are concerned specifically with the following
portions of Appendix "H":
Form 1 Award No. 28728
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91-3-90-3-47
Section I, paragraphs A and D;
Section II, paragraphs F, G and H;
Section IV, paragraph A.
Inasmuch as Appendix "H" has been included in the Ex Parte Submissions of both
parties, we will not burden this record further by restating the contents of
the aforementioned Sections of the Agreement.
The chronology of events in this case indicates that, following
Claimant's entry into service as a pre-trainee Helper on July 8, 1985, he was
promoted to a position in the Signalman's class prior to his completion of the
full training program. Subsequently, when Claimant had completed the second
period of the training program on or about October 21, 1988, he was tested and
failed the examination covering that Section of the training program. On
November 18, 1988, Claimant was permitted to take a second examination on the
material included in the second training period. He again failed to achieve a
passing grade on the examination. He was thereupon notified that he had forfeited his seniority and
Claims and appeals on his behalf were initiated by the representative Organization and were progress
handling of the dispute, it has now come to this Board for final adjudication.
The Organization's position takes several approaches. It argued that
Claimant had been improperly "dismissed" from service because, as a promoted
Signal Maintainer, he was only required to attend classroom instruction but
was exempt from the examination provisions of the Training Agreement. Petitioner further argued that
and application of the provisions of the training program. They also argued
that the test in this instance had not been given in the office of the Supervisor nor was the Local
Organization continued their argument by contending that Carrier had failed to
give Claimant sufficient material and tutoring to enable him to prepare for
the reexamination.
.1 V
Carrier submits that the Claimant entered the service subsequent to
the effective date of the Agreement and therefore was subject to all of the
terms and conditions of the Training Agreement. They argued that Claimant was
not "dismissed" from service, but rather had resigned from the service in
accordance with the provisions of the self-executing provisions of Section 11,
paragraph H of the Training Agreement. Carrier contended that the Organization's argument relativ
the second examination has
no
basis in fact and is not supported by any probative evidence. Finally, Carrier points out that t
relative to the location of the examination and the-absence of the Local Chairman are completely new
Form 1 Award No. 28728
Page 3 Docket No. SG-29122
91-3-90-3-47
The case record clearly establishes that the Claimant was subject to
the terms and conditions of the Training Agreement outlined in Appendix "H".
The record does not contain any probative evidence to support the charge that
Carrier was lax or dilatory in its application of the Training Agreement.
Statements of opinion are not proof. The record does support Carrier's contention that the Organizat
and the alleged absence of the local representative are made for the first
time before this Board. As such, that argument is dismissed. The fact that
the Claimant was promoted to a Signal Maintainer's position prior to his
completion of the total training program does not, per se, exempt him from the
examination requirements which follow the completion of the individual phases
of the training program. Examinations and tests are the only legitimate way
to determine if the classroom and other instruction of the trainee has produced the desired result c
the Training Agreement-provides for the exemption from testing advocated by
the Organization. Such an interpretation of the Training Agreement would lead
to an absurd result.
We have carefully reviewed the case record; we have studied the
provisions of the Training Agreement; we have weighed the arguments of the
respective parties and we must conclude that Section II, paragraph H of the
Training Agreement which reads:
"An employee hired after the effective date of
this Agreement who fails to pass a reexamination
will forfeit all seniority and he will be considered as having resigned from the service."
is applicable in this situation. The Organization has not proven a violation
of any of the provisions of the Training Agreement. The Claim as presented is
denied.
A W A R D
Claim denied.
., .
NATIONAL RAILROAD ADJUSTMENT BOARD
By .Order of Third Division
i
Attest:
aticy J. -Executive Secretary
Dated at Chicago, Illinois, this 28th day of March 1991.