Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35917
Docket No. MW-35633
02-3-99-3-558
The Third Division consisted
of
the regular members and in addition Referee
Nancy F. Murphy when award was rendered.
(Brotherhood
of
Maintenance
of
Way Employes
PARTIES TO DISPUTE:
(Burlington Northern Santa Fe Railway Company
( (former Burlington Northern Railroad Company)
STATEMENT OF CLAIM:
"Claim
of
the System Committee
of
the Brotherhood that:
(1) The Carrier's decision to disqualify Mr. T.W. Brown as a Group 3
Machine Operator (Jackson Tamper 6700) on April 9, 1998 was
without just and sufficient cause, unfair and in violation
of
Rule 23
(System File C-98-D090-5/MWA 98-09-02AC BNR).
(2) As a consequence
of
the aforesaid violation, Mr. T.W. Brown's
record shall now be ` . . . be reinstated to the 6700 which he was
disqualified from. He should also be made whole for all lost wages
including overtime that he has lost since his disqualification. I
would also like to remind you that this is a continuing claim until
such time Mr. Brown is reinstated to the 6700 tamper with all rights
and loses (sic) returned to him."
FINDINGS:
The Third Division
of
the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning
of
the Railway Labor Act, as
approved June 21, 1934.
Form 1 Award No. 35917
Page 2 Docket No. MW-35633
02-3-99-3-558
This Division
of
the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice
of
hearing thereon.
In early March 1998, Claimant T. W. Brown was assigned, by bulletin, to a
Machine Operator's position on the 6700 Production Jackson Tamper (hereinafter
referred to as the "Jackson Tamper"). The Claimant, who had no prior experience on
the Jackson Tamper, trained on the equipment from March 16 until April 9, 1998. On
April 9,1998 the Claimant was informed that he had been disqualified from the position.
On April 16, 1998, the Local Chairman requested an Unjust Treatment Hearing
alleging that the Claimant had been disqualified "without provocation or justification."
Said Hearing was scheduled, postponed, rescheduled and held to conclusion on May 29,
1998, after which the Carrier upheld the disqualification.
On June 5,1998, the Local Chairman submitted a claim to Manager Maintenance
Support Parenteau, alleging that the Carrier had violated the Agreement when the
Claimant was "unjustly" disqualified on April 9, 1998. On July 31, 1998, Parenteau
denied the claim stating that: "Our investigation reveals that the Claimant requested
an Unjust Treatment Hearing and the disqualification was upheld. Given the above,
your claim is respectfully denied in its entirety."
In the meantime, however, on July 19, 1998, Vice General Chairman Archibald
sent Division Superintendent Houghton similar correspondence in which he also
appealed Terminal Engineer Schibblehut's decision to uphold the Claimant's
disqualification.
On July 30, Division Superintendent Satunas denied the Vice General Chairman's
appeal, contending that the Claimant's April 9,1998 disqualification was "justified and
warranted." Shortly thereafter, on August 19, the Vice General Chairman sent
Assistant Director Labor Relations Merrell an appeal regarding the Division
Superintendent's July 30,1998 denial. In pertinent part, Merrell informed the General
Chairman that:
Form 1 Award No. 35917
Page 3 Docket No. MW-35633
02-3-99-3-558
"Your August 1998 letter, no file number, appeals a claim on behalf of T.
Brown and alleges the Carrier's disqualification of the Claimant violated
the Agreement.
First, the claim is not properly before the Carrier because the
Organization has failed to follow the line of appeal as outlined. The line of
appeal forwarded to the General Chairman indicates that only discipline
should be appealed to the Division Superintendent and that all other claims
and grievances should be handled with the Manager Maintenance Support.
This case is not a discipline issue and the Organization's appealing the
dispute to the Division Superintendent did not comport with the line of
appeal. Because of this glaring procedural error, the claim should be
withdrawn.
Even if the claim were properly before the Carrier, and it is not, it is
without merit. In a case of this nature, it is the Organization's burden to
prove that the employee should not have been disqualified. This can only
be done by bringing forth evidence that Claimant was qualified to perform
all aspects of the position to which assigned. Although the Organization
proffered a couple of statements on the Claimant's behalf, neither one
indicates the Claimant's production rate was satisfactory or that Claimant
was a qualified operator. Inasmuch as the Organization has failed to
prove any violation of the labor agreement, we deny this claim in its
entirety."
Our review of the record persuades us that the Organization failed to carry its
burden of proving a violation of the Claimant's contractual rights. Moreover, the
Carrier correctly points out that the filing of duplicate claims by the Local Chairman
and the Vice General Chairman was an unnecessary complication on the record.
AWARD
Claim denied.
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Page 4 Docket No. MW-35633
02-3-99-3-558
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 22nd day of January, 2002.