On August 27, 1974, the Claimant hired out on the Chicago and Northwestern Transportation Company (C&NW). He holds seniority as a Track Machine Operator (TMO) since July 28, 1975. The Claimant subsequently established seniority as a system Track Machine Operator on the Union Pacific Railroad system gangs.
On February 25, 1999, the Claimant was assigned to a Speed Swing position on System Rail Gang 9013. The gang was under the supervision of Engineering Supervisor J. D. Swore. On March 16, 1999, Supervisor Swore advised the Claimant that he was disqualified as a Speed Swing Operator due to "safety."
Under Rule 48(n) of the parties' Agreement, if an employee feels that he or she has been unjustly treated he or she may request a conference provided the request is made within 20 calendar days of the cause of complaint. The Organization contends that on March 23,1999, it requested a conference to determine the facts involved in the Claimant's disqualification. The Carrier maintains that it never received such a request.
On May 11,1999, the -Organization fled a claim on the Claimant's behalf asserting that his disqualification was unjust. It was the Organization's contention that the purported reason given forthe Claimant's disqualification ("safety") was too vague to have any meaning.
The Carrier denied the claim on July 5, 1999. On October 4, 1999, the Carrier gave the Organization a statement from Engineering Supervisor Swore in which he asserted that the Claimant was disqualified as a Speed Swing Operator because he had to have the Assistant Foreman help him set the machine on and off every morning. He also did not have control of the machine, according to Supervisor Swore.
As noted above, the Organization argues that the Carrierviolated Article 48(n) when it failed to hold a conference to discuss the Claimant's disqualification. The Carrier insists that it never received any request for a conference.
After reputedly requesting a conference on March 23,1999, the Organization never contacted the Carrier to ascertain the status of its request. Rather, almost two months later it filed a grievance protesting the Carrier's failure to hold a conference. On November 4, 1999, the Carrier offered to hold a conference to discuss the Claimant's disqualification, but Form 1 Award No. 36422
the Organization declined that offer. In view of these circumstances, the Board finds that the Carrier did not violate Rule 48(n) of the applicable Agreement.
The Organization also avers that the Claimant's disqualification constituted discipline rind that he was disciplined without being given a fair and impartial Hearing. The Board respectfully disagrees with the Organization's contention. In our view, the Claimant was disqualified in accordance with Rule 20(d) of the parties' Agreement. This disqualification did not constitute discipline and, therefore, Rule 48(a) and (c) of the Agreement were inapplicable.
According to the Claimant's supervisor on System Rail Gang 9013, the Claimant was disqualified as a Speed Swing Operator because he required assistance every morning setting the machine on and off and he did not operate it safely. The Claimant never denied Supervisor Swore's opinion of his ability to operate the Speed Swing. Therefore, it stands unrefuted.
There is no evidence in the record before the Board that the Carrier's determination of the Claimant's capability to operate the Speed Swing safely was arbitrary, capricious or unreasonable. Accordingly, there is no basis to vacate his March 16,1999 disqualification and the claim is denied as a result.
Thin Board, after consideration of the dispute identified above, hereby orders that an Award Favorable to the Claimant(s) not be made.