The Third Division consisted of the regular members and in addition Referee Jacalyn J. Zimmerman when award was rendered.
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The Claimant, who had approximately two years' service with the Carrier at the time of the relevant events, established seniority as an Assistant Foreman on System Rail Gang No. 9101 on August 8, 2003. On January 6, 2004, the Claimant's supervisor sent him a letter stating, "This letter is to inform you that you have been disqualified from the position of NM asst. foreman . . . Reason: Failure to organize your work group, failure to stay involved in daily work activities." Shortly thereafter, the Claimant submitted a statement in which he asserted that he had never seen a project before beginning work, that he had not received sufficient advance notice of projects to allow for adequate planning,, and that he had received no training from his supervisor.
It is well settled that the Carrier has the right to determine employee qualifications, and such determinations should not be disturbed by the Board unless they were made in an arbitrary manner. There is no such showing here. The
Form 1 Award No. 39669
The Organization contends that the Carrier's action was disciplinary in nature, so as to trigger the requirement that he be afforded a full and fair Investigation, but we do not agree. The Carrier did not contend that the Claimant committed any misconduct or negligent act. Rather, the Carrier asserted, as the Claimant acknowledged, an overall lack of preparedness and ability to perform the duties of the position, that is, that he was not able to perform his position satisfactorily. Because this was not a question of discipline, the Claimant was not entitled to an Investigation.
We also cannot accept the Organization's argument that the Carrier was precluded from disqualifying the Claimant because he held the position longer than 30 days. The Organization points to Rule 19(c) which provides, in relevant part, that "Employees accepting promotion and failing to qualify within thirty (30) days may return to their former positions without loss of seniority." The Organization contends that because there is no Agreement provision providing for disqualification beyond that period, the Carrier's action must be viewed as discipline, governed by Rule 21. However, the argument that such Rule language is a limitation upon the Carrier's right to disqualify an employee beyond the 30-day period has been specifically rejected by this Division, see Third Division Award 36957. The case cited by the Organization involves language specifically providing that an employee will not be disqualified beyond the 30-day period, language not present here, and therefore does not support its position in this case.
Finally, the Organization contends that the process was flawed because the Organization received no response to its request, made to the Chief Engineer of Track Programs, to initiate the Manager Conduct Supplement Review Process. The Carrier disputes that this request was included in the parties' on-property handling, and the Organization has not described the process or explained what impact it might have had upon the Carrier's action herein. Therefore, it does not provide a basis for overturning the Claimant's disqualification.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.