"Claim on behalf ofthe General Committee of the Brotherhood ofRailroad Signalmen on the Union Pacific Railroad Company:

Claim on behalf of J. Koran Jr. for payment of the difference between the Foreman rate and the Carrier Maintainer rate for all straight time hours from November 6, 1996 to September 4, 1997, and for his record to be cleared of any reference to his disqualification from the position of Foreman, account Carrier violated the current Signalmen's Agreement, particularly Rule 400), when it disqualified the Claimant as a Foreman on November 7,1996. Carrier also violated Rule 40(f) when it did not render its decision within 10 days after the unjust treatment hearing conducted on March 21, 1997. Carrier's File No. 1058643D. General Chairman's file No. 68409266. BRS File Case No. 10678-UP."

Parties to said dispute were given due notice of hearing thereon.

in the service more than sixty (60) calendar days will not be

disciplined or dismissed without a fair hearing ....

(b) Hearing will be held as promptly as possible and within fifteen (15) calendar days from the date the charge is made against the employe or the employe is withheld from service, and at least five (5) days prior to the time fixed for the hearing the employe will be apprised of the precise charge ....

date the hearing is concluded.

If the charge against the employe is not sustained, the employe will be compensated for the difference between amount actually earned and the amount lost in regular assignment.

If the charge is sustained, the employe will not be compensated for time lost attending the hearing ....

(j) Employes who consider they have been unjustly treated shall have the same right of hearing and appeal as provided hereinbefore if written request is made to their immediate supervisor within ten (10) calendar days of cause of complaint . . . ."

By letter of November 6, 1996, the Claimant was informed by the Carrier of his disqualification from the position of Signal Gang Foreman. The Organization requested a Hearing concerning the Carrier's determination by letter of November 13, 1996. A Hearing in this matter was ultimately held on March 21, 1997. Following the Hearing, the Claimant was notified in a letter dated April 3, 1997, that sufficient evidence had been presented to uphold his disqualification.

In a letter dated June 1, 1997, the Organization filed a claim on behalf of the Claimant. In that claim it contended that the Carrier had violated Rule 40 (supra) when it failed to render a decision in the Claimant's unjust treatment Hearing within ten calendar days of the conclusion of the Hearing. The claim was denied and subsequently appealed in the usual manner.

It is the position of the Organization that Rule 40 is clear as it applies to unjust treatment Hearings. It notes that Rule 400) establishes that employes who feel they have been unjustly treated "have the same right of hearing and appeal as provided hereinbefore [for employes who are granted a disciplinary hearing]." Thus, the Organization maintains that by neglecting to inform the Claimant of its determination regarding his disqualification the Carrier has violated Rule 40(f), and must now place the Claimant in the position from which he was disqualified and reimburse him for any lost income.

The Carrier points out that the Hearing closed on March 21,1997, the transcript was completed by the transcriptionist on March 28,1997, and the letter of determination was dated April 3, 1997, or six calendar days after completion of the transcript. It also notes that the language of 40(f) refers to employes who have been disciplined, and that disqualification is not regarded as discipline. Further, even if, areuendo, the Board were to find that Rule 40 (f) did apply in this instance, any small delay did not prejudice the Claimant. Moreover, the Carrier contends that there is no basis upon which the Board can sustain the instant claim, since it has long been established that the Carrier retains the right to determine qualifications within the bounds of reasonableness.

The Board has reviewed the language of Rule 40 in light of the instant matter. It does not find that the penalty the Organization seeks can be applied in this case. The delay, if indeed there was one, was certainly de minimus, and did not in any way disadvantage the Claimant in either a professional or monetary way. Nor is there a specific penalty established in the Agreement for delays in unjust treatment hearing scheduling or determinations. At most, the time limits included in Rule 40 should encourage both Parties to expedite such matters to the greatest extent possible. Further, once the Claimant had been found unqualified by the Carrier through the procedure established by Rule 400), the Board is, and has historically been, reluctant to superimpose its own judgment in lieu of the Carrier's.

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.