Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29318
THIRD DIVISION Docket No. CL-29711
92-3-91-3-63
The Third Div_sion consisted of the regular members and in
addition Referee James E. Mason when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(CSX Transportation, Inc. (former Chesapeake and Ohio
Railway Company)
STATEMENT OF CLAIM: ".-:aim of the System Committee of the Brotherhood
10536) that:
(a) The Carrier violated the provisions of Rule 20, 60 and others by
having a hearing December 12, 1985 to determine the material facts as to why
Robert A. McNeil failed to report for duty on November 1, 1985. The facts as
presented in the transzript will only prove that there was a definite problem
on the night of Novem:er 1, 1985 because Robert A. McNeil had an apparent
heart attack while enroute to report for duty. He was rushed to the nearest
hospital and couldn't even breath (sic) properly. He didn't try to hide the
reasons that might have led to this temporary health problem and, in fact
presented evidence to 3rove that he had taken the necessary precautions to
correct this problem. For some apparent reason, the facts as presented were
not considered because Robert A. McNeil was removed from his Chief Clerk
position which is unj_st, unwarranted and certainly not fair.
(b) Robert S. McNeil should be allowed the pro rata rate of position
Chief Clerk E-46, rate $2,899.29 per month, for eight hours on December 25,
1985 and every date suosequent to December 25, 1985 until this claim is
allowed or he is placed back on Position E-46. Any overtime that he might be
paid should be paid a: the Chief clerk rate. When and if the new company CCSI
is formed, his guarantee should be $2,899.29 per month, not the Console AEO
rate of Position A-60, rate $2,767.14 per month.
(c) Robert A. McNeil should not be assessed the (10) days overhead
suspension for a perl-d of six months."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier Gr 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.
Form 1 Award No. 29318
Page 2 Docket No. CL-29711
92-3-91-3-63
The operative facts of this case are reasonably clear. Claimant was
assigned to a partially excepted Chief Clerk position in the Computer Center
at Baltimore, Maryland. While enroute by taxicab to his assigned position,
which was scheduled to begin at Midnight on November 1, 1985, Claimant apparently experienced.chest
emergency room examination and treatment. Claimant allegedly asked the taxi
driver to call a telephone number given to him by Claimant and inform the
Carrier of Claimant's inability to report for work. There is no record of
this call having been received by Carrier. There is, however, testimony to
suggest that, at times, difficulty is experienced when attempting to contact
Carrier's office.
Subsequently, Claimant was charged with failure to protect his assignment and failing to report
postponed by mutual consent of the parties to December 12, 1985, at which time
Claimant was present, was represented and testified on his own behalf. Following the completion of t
10-day overhead suspension and by removal from the partially excepted Chief
Clerk position.
From our examination of the record in this case, we find that Claimant has been accorded all of
under the provisions of the negotiated Rules Agreement. We further find that
there is substantial evidence to support the conclusion that Claimant failed
to properly protect his assignment on the date in question. Claimant's reliance on the taxi driver t
instance and Claimant's failure to attempt to verify that the taxi driver had,
in fact, marked him off was negligent on his part. We do not find that the
10-day overhead suspension was excessive for this negligence. We do not,
however, believe that the additional discipline of permanent demotion from the
partially excepted position was justified by the relative convincing force of
testimony and evidence in this case.
Therefore, it is our conclusion that Claimant should not be compensated for any of the wage dema
should be reinstated to a partially excepted position consistent with his
qualifications and the availability of 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:
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 24th day of July 1992.
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Serial No. 352
INTERPRETATION NO. 1 TO AWARD NO. 29318
DOCKET NO. CL-29711
NAME OF ORGANIZATION: Transportation Communications
International Union
NAME OF CARRIER: CSX Transportation, Inc. (former
Chesapeake and Ohio Railway Company)
on January 10, 1994, the organization through its General
Chairman, requested that the Board issue an Interpretation of the
above cited Award which was adopted on July 24, 1992. The Award
held, in pertinent part, as follows:
"Therefore, it is our conclusion that Claimant should not
be compensated for any of the wage demands made in the
Statement of Claim, but he should be reinstated to a
partially excepted position consistent with his
qualifications and the availability of such a position."
In its request for an Interpretation of Award 29318, the
organization argued as follows:
"The organization contends that to fully comply with
Award 29318 the Carrier must:
(a) Reinstate Claimant to the CCSI
operation consistent with his
fitness and ability, inasmuch as
this is the venue in which the claim
arose, and if necessary, retrain him
due to the changes in technology
over the last 8 years.
(b) In the alternative, place Claimant
on a partially excepted position on
the Baltimore General Office Roster,
District No. 3, consistent with his
fitness and ability and if
necessary, train him under the
training provisions of Rule 10.
The Carrier refused to:
(a) Reinstate Claimant to the CCSI
operation maintaining that since the
effective date of the Award there
have been no available partially
excepted positions consistent with
Claimant's qualifications.
(b) Place Claimant on a partially
excepted position on the Baltimore
General Office Roster maintaining
that since the effective date of the
Award there have been no available
partially excepted positions
consistent with Claimant's
qualifications."
The Carrier, in its reply to the requested Interpretation,
contended as follows:
"It is the Carrier's position that the language used by
the Board in the above referenced passage is simple and
not subject to misinterpretation. It simply means that
the Claimant should be elevated to the next partially
excepted position that his seniority avails to him and
that he is qualified to perform."
Both parties involved in this dispute are aware of the fact
that the so-called "excepted" positions such as are in question
here are exempt from coverage of certain Agreement Rules, -including Rule
4
which is relied on in this instance by the
organization. Carrier has the unfettered right to select the
individual it chooses to assign to "excepted" positions without
regard to or consideration of seniority standing. The carrier also
has the right to determine qualifications, fitness and ability of
its appointee to these "excepted" positions.
On the other hand, the organization has considerable control
over the number and location of "excepted" positions which may
exist in a seniority district and over the creation of new or
additional "excepted" positions.
In the Board's determination of this case when making its
Award, consideration was given to the fact that the claimant had
apparently met Carrier's criteria when he was initially selected
for appointment to an "excepted" position. His dereliction which
caused the imposition of discipline was not, in the Board's
judgment, of sufficient degree to support a permanent
disqualification from the preferential "excepted" status.
The Board, however, does not possess the authority to order
the creation of positions or to order the parties to agree on the
designation of an "excepted" position. Neither did the Board
intend by its Award 29318 that Claimant should or would immediately
return to an "excepted" position UNLESS such a position was
available for Claimant consistent with his qualifications.
Apparently, from the arguments of the parties in this requested
Interpretation, there are not now and have been no available
"excepted" positions for Claimant since the adoption of the Award.
The Organization's contention that Claimant would have
transferred to the newly created Chessie Computer Systems
Incorporated is pure speculation on which the Board cannot and will
not comment.
It is noted, however, that the Organization has within its
power the ability to cooperate with the Carrier in the settlement
of this situation by agreement on an "excepted" position on which
Claimant possibly could be reinstated to "excepted" status. This
dicta, however, is offered only for whatever salutary effect it may
achieve.
The Award as issued means that Claimant's reinstatement to an
"excepted" position can occur only if there is an available
"excepted" position for which Claimant is qualified. Nothing more!
Nothing less!
Referee James E. Mason, who sat with the Division as a neutral
member when Award 29318 was adopted, also participated with the
Division in making this Interpretation.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of the Third Division
Attest:
Lind~ds - Arbitration Assistant
Dated at Chicago, Illinois, this 8th day of June 1994.