Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36278
Docket No. SG-35898
02-3-99-3-915
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:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Union Pacific Railroad Co. (former Southern
Pacific):
Continuous claim on behalf of H.C. Steele for reinstatement to the
- ` position of Signal Foreman and for payment for all services rendered at
the Foreman's rate of pay commencing on October 22, 1998 and
continuing until the violation ceases. Straight time should be paid for all
time worked during regularly assigned hours and overtime should be paid
for all time worked outside of regular hours. Account Carrier violated
the current Signalmen's Agreement, particularly Rules 53, 42, and 43,
when it did not provide the Claimant with an investigation and assessed
discipline against him without meeting the burden of proving the charges
in connection with Carrier's disqualification of Mr. H. C. Steele on
October 21,1998. Carrier's File No. 1166001. General Chairman's File
No. SWGC-1892. BRS File Case No. 11075-SP."
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.
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This Division of the Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
The facts in this case are clear and undisputed. The Claimant was employed as
a Signal Foreman on the Los Angeles Division. He had been employed in this
classification with a seniority date as Foreman of March 2,1997, when, by letter dated
October 21, 1998, he was notified that he was disqualified as a Signal Foreman.
Following this action by the Carrier, the Organization on November 17,1998, presented
the claim as outlined in the STATEMENT OF CLAIM supra. The claim as presented
was handled in accordance with the established grievance procedures at all levels on
the property without resolution of the dispute. The case is therefore properly before
the Board for a final and binding decision.
Throughout the handling of the dispute, the Organization took the position that
the disqualification of the Claimant constituted an act of discipline in violation of the
provisions of Rules 42, 43, and 53 of the Agreement. The pertinent language of these
three Rules reads as follows:
"Rule 42 - PROMOTIONS TO HIGHER CLASS
(a) Promotions shall be based on ability and seniority. Ability being
sufcient, seniority shall prevail.
(b) An employee accepting promotion will be granted thirty (30)
working days in which to qualify.
Rule 43 - FAILURE TO QUALIFY
An employee failing to qualify within thirty (30) working days, may
exercise his seniority in the seniority class from which promoted and
displace the junior employee (if his junior) in such class. If there is no
employee his junior in that class, he may displace the junior employee (if
his junior) in the next lower seniority class in which his seniority will
permit him to work.
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Rule 53 - INVESTIGATIONS, DISCIPLINE AND APPEALS
(a) An employee who has been in service more than ninety (90)
calendar days, or whose application has been formally approved,
shall not be disciplined or dismissed without a fair and impartial
investigation, however, by mutual agreement with the Company,
an employee may accept discipline proposed by the Company and
waive, in writing, the right to a formal investigation.
(e) In the event the charge is not sustained, it shall be stricken from the
record and the employee reinstated if he has been removed from
his position, and compensated for his net wage loss."
The Organization consistently argued that the Carrier had not provided any
proof of its allegations, that the Claimant had not been disqualified within the time
periods specified in Rules 42 and 43, and that the action of disqualification was
arbitrary and capricious.
The Carrier's position is that none of the provisions of Rules 42, 43 or 53 are
involved in this dispute. Rather, the Carrier argued that Rule 55 - UNJUST
TREATMENT was the proper avenue to be followed if the disqualification was felt to
be improper. The Carrier pointed out that no one ever requested a Hearing as
provided for in Rule 55. The pertinent language of Rule 55 reads as follows:
"Rule 55 - UNJUST TREATMENT
An employee who considers himself unjustly treated, other than covered
by these rules, shall have the right of conference with an officer of the
department assisted by one or more duly accredited representatives,
provided a written request setting forth his complaint is made to his
immediate supervisor within sixty (60) days of the cause of complaint.
Failing to dispose of the complaint in such conference, appeal may be
taken in accordance with Rule 54."
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The Carrier further argued that the Carrier alone has the right and
responsibility to determine qualifications for a position and that the time periods
specified in Rules 42 and 43 are not a bar to disqualification at any time that it becomes
apparent that the employee is no longer qualified to properly function in a position
Such action, the Carrier insists, is not discipline subject to the provisions of Rule 53.
The issues involved in this case are not ones of first impression. See Second
Division Awards 8550, 10948, 11064, 11528; Third Division Awards 20045, 21596,
24626, 29307, 31072, 34201, 36035, 36036; and Fourth Division Awards 3260 and 4542.
In an early decision found in Third Division Award 4687, we read:
°`This Division has uniformly held that determination as to ability and
fitness is exclusively a managerial function and will be sustained unless it
appears that the decision of the Carrier was capricious or arbitrary; that
the burden is on Claimant to establish that such was the case, and that if
the decision of the Carrier is supported by substantial evidence it will not
be disturbed."
In fact, in the Organization's Submission to the Board in this case, we read:
"It is well established that Carrier retains the fundamental right to
determine fitness and ability for a particular position."
and
"It is recognized that Carrier retains certain discretion in determining an
employee's continuing qualification for a position . . . ."
The record in this case contains more than substantial evidence to support the
conclusion that the Carrier's determination of the Claimant's lack of qualifications to
continue as a Signal Foreman was based on credible factual information. The October
21, 1998 letter of disqualification apprised the Claimant of eight specific examples of
his malfeasance, misfeasance and nonfeasance as a Signal Foreman. The details of each
failure or improper action were adequately outlined in the letter of disqualification.
For reasons which are not apparent in the case record, neither the Claimant nor the
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Organization chose to pursue this action within the specifically defined provisions of
the Agreement, namely Rule 55 - UNJUST TREATMENT.
On the basis of the record as found in this case, it is the Board's conclusion that
there has been no violation of Rules 42, 43 or 53 for the reason that those Rules are not
applicable to the situation that exists here. Therefore, the claim is denied.
AWARD
Claim denied.
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 28th day of October 2002.