Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28802
THIRD DIVISION Docket No. MW-27559
91-3-86-3-822
The Third Division consisted of the regular members and in
addition Referee Lamont E. Stallworth when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Western Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it disciplined Laborer
R. P. Binder (disqualified as laborer on Gang No. 98) without benefit of a
hearing as stipulated in Rule 45(a) (Carrier's File MofW 138-80).
(2) The claimant shall be returned to his position on Crossing and
Switch Gang No. 98 and he shall. be paid per diem allowance for all days withheld therefrom because
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 employe 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 the Carrier's service on October 10, 1970, and was
assigned to the Carrier's Track Subdepartment, Western Seniority District,
Sacramento Division. At the time of the events giving rise to this claim, in
May 1985, Claimant held a laborer position on a Regional Production Gang known
as Crossing and Switch (C 6 S) Gang No. 98. That Gang is not assigned a permanent headquarters or as
track day by day. The Carrier does not provide mobile living quarters for the
Gang but instead gives each member a per diem allowance, for meals and lodging, in addition to regul
On May 6, 1985, Claimant was disqualified by the Carrier from that
position "(d]ue to [his] inability to maintain satisfactory production output
required" of such employees. Claimant therefore was free to exercise seniority to another position.
held immediately before assignment to the Regional Production Gang, namely, a
laborer position on the Carrier's Track Gang No. 12 at Los Banos, California.
That position, being headquartered at Los Banos, did not involve the payment
of a subsistence per diem in addition to wages.
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On May 17, 1985, the Organization filed this claim on behalf of
Claimant. The Organization contends that, in removing Claimant from his
assignment on C 6 S Gang No. 98, the Carrier violated Rule 45 of the Agreement, because Claimant was
45 provides as follows, in pertinent part:
"RULE 45 - HEARINGS
Notice. - (a) Employes in the service sixty (60)
calendar days or more shall not be disciplined nor dismissed without first being given a fair and im
hearing before an officer of the Company (who shall be an
individual other than the one preferring charges) and
decision having been rendered in accordance with this
rule. when charges are made against an employe, the
Company shall notify the employe in writing of the specific charges made against him by personal del
Return Receipt Requested. The employe shall be allowed
not more than ten (10) days from receipt of notice for
the purpose of securing witnesses which he may desire to
have appear at the hearing. Employes covered by this
agreement will be entitled to representation by a duly
authorized representative of the Organization, or by an
employe coming within the scope of this agreement. The
duly authorized representative of the Organization may be
assisted by another member of the Organization. The
hearing shall be held not later than twenty (20) days
from the date of receipt of notice by employe, unless
extended by joint agreement between the Carrier and the
employe or his representative and decision shall be
rendered promptly.
Where circumstances indicate an employe should not
be permitted to continue in service, he may be suspended
pending an investigation.
Charges not Sustained. - (b) If the charge against
the employe is not sustained, his record shall be cleared
and he shall be compensated for net wage loss which may
have been suffered by him as a result of the charge for
which hearing was held."
The Carrier argues that its removal of Claimant from the C 6 S Gang
was not covered by Rule 45, but instead was covered by and in conformity with
Appendix V to the Agreement. Appendix V consists of a letter of agreement
between the Parties dated August 30, 1979, stating:
"An employe regularly assigned to a position, or
whose displacement is accepted, who fails within a
reasonable time to demonstrate fitness and ability shall
vacate position on which disqualified and shall, within
five (5) working days, return to his former position,
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providing it has not been abolished or taken by a senior
employe through displacement, in which case the return
ing employe shall exercise displacement rights in
accordance with Rule 13."
The disqualification of Claimant was based upon the recommendation of the
Carrier's General Track Foreman. That recommendation, contained in a letter
dated May 6, 1985 to the Carrier's Regional Maintenance of Way Manager, stated:
"Mr. R. P. Binder, as a member of C&S 98, has been
assigned as one of the support forces behind TG-5 doing
quality control work. Mr. Binder's attitude is one of
complete indifference to duty which has lead to a general demoralizing affect on the people working
around him.
As you well know, the primary function of the gang
is to do the final spiking and apply rail anchors to
conform to standard and raise down ties ahead of the
Surfacing Gang.
The following is list of Mr. Binder's performance
on the above-mentioned tasks:
1. SPIKING - When assigned to spike with air
hammer, he drives a spike then stops, removes his gloves
and hat, then takes out his handkerchief and wipes his
safety glasses off then he puts his handkerchief away,
replaces his gloves and hard hat and the process is
repeated for each spike. During the time it takes Mr.
Binder to drive one spike, the person on the opposite
side has driven fifteen (15) spikes. Repeated cautioning as to poor working habits is met with comme
as: 'so' or 'so what'.
2. APPLYING RAIL ANCHORS - When assigned to do
this job, Mr. Binder stays back behind the other employees in order to avoid having to do any work a
or if left a specific amount to do, takes so long in
doing it that he is left far behind the other people
doing two to three times as much work. Repeated cautioning to Mr. Binder as to the work that is requ
him would result in him answering: 'so' or 'so what'.
Complaints of the other employees around him about his
performance brought the comment from Mr. Binder that he
only has one speed and nobody is going to make him work
any faster or harder.
3. RAISING DOWN TIES - When assigned this duty,
Mr. Binder is exceedingly slow and falls so far behind
the other employees that it has been necessary to double
back the other people to help him get caught up with
what was only his fair amount. When doing this job, you
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work in pairs and the condition exists that no one else
wants to work with him because he will not keep up.
This has caused the other employees to be criticized as
well. When Mr. Binder is cautioned as to his perform
ance, his comment is still 'so' or 'so what'.
As previously mentioned, the overall morale in the
support forces behind TG-5 has fallen so low because of
Mr. Binder's performance that I feel we can no longer
continue to utilize Mr. Binder. Repeated request (sic]
by myself for improved performance as well as detailed
explanation of work several times daily over the last
several weeks has met with negative response from Mr.
Binder, therefore, I recommend that we disqualify Mr.
Binder as a Regional Gang Laborer."
The Organization argues that the disqualification of Claimant was not
in conformance with the letter agreement (Appendix V), but instead was disci
plinary. The Organization relicts on the fact that Claimant had established
seniority as a track laborer in October 1970, almost 15 years before the dis
qualification. The record does not disclose how long Claimant had held the
position on the Regional Production Gang before he was disqualified. The
Organization argues that Claimant had no problem in that position until he
came under the supervision of the General Foreman who recommended his dis
qualification, but the record does not reflect when that occurred either. The
Organization has not produced evidence contradicting the assertions about
Claimant's performance contained in the General Foreman's letter quoted above.
(In its submission to this Board, the Organization has attached correspondence
from Claimant suggesting that, after Claimant's disqualification and return to
Los Banos, he was assigned to perform work there which was identical to that
from which he had been disqualified on the C&S Gang. However, that evidence
was not presented on the property. Furthermore, as the Carrier points out,
the assertion from Claimant does not indicate whether the workload at Los
Banos was similar to when he was disqualified.)
However, the Organization also relies on the contents of that letter
to support its contention that the disqualification of Claimant was disciplinary. The Organization r
to Claimant deliberate misconduct rather than inability to perform. The Organization notes that a st
who received and approved the General Manager's recommendation, described
Claimant's conduct as constituting "deliberate, planned poor performance."
According to the Organization, that is the language of a disciplinary charge,
rather than a disqualification for failure to demonstrate fitness and ability.
The Organization refers to precedent in which the disqualification of
an employee has been held actually to have been discipline which therefore
should have been imposed pursuant to disciplinary rules. However, in the two
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Awards of this Board cited by the Organization, Third Division Awards 14803
and 11256, the impact on the employees was to remove them altogether from the
Carrier's service. In Award 11256, the Board commented: "For all practical
purposes, [claimant] was utterly dismissed (discharged from said service)
....
Likewise, in Award 14803, the Claimant never again worked for the Carrier
after his disqualification. In the present case, Claimant was permitted to
exercise seniority to another like-rated position, and did so in such a way as
to suffer no loss of wages.
On the other hand, as the Carrier points out, there is abundant precedent for the proposition th
As was said in Third Division Award 24068:
"it is well established that once Carrier has presented
a rationale for its conclusion that an employe is not
qualified for a particular position, it is incumbent on
(the Organization] to present evidence to establish
Claimant's ability [citptions omitted]. In the absence
of a showing that Carrier's conclusion was arbitrary or
capricious and did not properly consider claimant's
ability, the claim must fail."
Once the Carrier has articulated the Claimant's deficiencies, the Organization
bears the burden of introducing evidence indicating that the Claimant was in
fact fit and able to perform the position and possessed the ability that the
Carrier has asserted to be lacking. Third Division Awards 24068, 23860,
18286, etc. A situation much like this one was involved in Third Division
Award 25331, where the Board said:
"[T]he Claimant commenced work as a Spike Reclaimer
Operator. After the Carrier's Officials concluded that
his production was not sufficient because he failed to
keep ahead of the tie shears, and, consequently, slowed
down the progress of the entire work gang. Because of
his low production, he was disqualified as an Operator.
The Claimant then chose to take a furlough rather than
exercise his seniority for a Trackman position. However, he ultimately returned to work as a Trackma
In that case, the Board sustained the Carrier's action in disqualifying the
employee.
The Fourth Division, in Award 3260, has said:
"(U]nless there is a showing of substantive evidence of
probative value that Carrier wilfully and maliciously
demoted an employe with intention to punish such employe
for his shortcomings, there is no basis for concluding
that the matter was disciplinary in nature entitling the
employe to a hearing. Absent such showing it is universally accepted by the awards of this Board tha
has the right to determine fitness and ability of an
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employe for a position and such determination shall
not be disturbed by this Board unless it appears that
the decision was arbitrary or capricious."
These Awards reflect a reasoned view of the applicable agreement. The Carrier
maintains the latitude to determine that an employee is unfit based not only
upon the employee's latent ability to do the work but also upon his apparent
willingness to do it. If an employee fails to perform to the minimally accepted level, whether becau
Carrier is within its rights under the Agreement to disqualify him in the manner the Agreement provi
the Board to be disciplinary, requiring a hearing, unless there is evidence
that the Carrier intended it to punish the employee rather than to simply remove him from a position
such evidence in this case. If such evidence exists, it was the burden of the
Organization to present it. The Carrier's letter of disqualification is insufficient by itself. Ther
In any event, Claimant would not be entitled to an award of per diem
allowance for the days he would have worked on the C&S gang if he had not been
removed from that gang. The precedent is clear that a Claimant is entitled to
an award of per diem only when he has worked a position which required him to
bear the sorts of expenses which the per diem is to cover. See, Third Division Awards 26357, 26055,
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
'Nancy J., seer - Executive Secretary
Dated at Chicago, Illinois, this 15th day of May 1991.