Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44242 Docket No. MW-45433
20-3-NRAB-00003-190182
The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(BNSF Railway Company (Former Burlington Northern (Railroad Company)
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when, by letter dated September 13, 2017, the Carrier disqualified Mr. R. Blessing from all welding classifications (System File C- l 8-D090-l /10-18-00 l 9 BNR).
The Agreement was violated when the Carrier refused to grant Mr.
R. Blessing an unjust treatment hearing under Rule 62 in connection with his disqualification from all welding classifications beginning on September 13, 2017 and continuing (System File C- 18-A040-3/10-18-0049).
As a consequence of the violation referred to in Part (1) above, the Carrier shall:
‘... overturn the disqualification of Mr. Blessing, that Manpower remove the Check Statuses for Mr. Blessing which would allow him to return to his Head Welder position again or bid to another Welder position of his choice, and to keep his seniority intact. I am also requesting that Mr. Blessing be paid the difference in the hourly wage, both straight time hours and overtime hours of a Head Welder, and that of any position Mr. Blessing has been working since he was disqualified from his Head Welder position. I am
requesting the difference in pay beginning on September 14, 2017 between the Head Welder position and any other position Mr. Blessing had been working until he is once again able to hold a Head Welder position.’
As a consequence of the violation referred to in Part (2) above, the Carrier shall ‘... 1) overturn the disqualification in all classifications within the Welding Sub-department; 2) Manpower remove the ‘check statuses’ for Claimant which would allow Claimant to return to his Head Welder position again or would allow for him to bid to positions within the Welding Sub-department as his seniority allows and; 3) Claimant be paid the difference in the hourly wage, both straight time and overtime hours of a Head Welder, and that of any position Claimant has worked since being improperly disqualified from the Head Welder position on September 13, 2017 and until Claimant once again can bid to and be assigned to any position, including but not limited to Head Welder, within the Welding Sub-department.’”
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.
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 following provisions from the parties’ Agreement have been cited as pertinent:
“RULE 23. FAILURE TO QUALIFY
Employes awarded bulletined positions, or employes securing positions through exercise of seniority, in a class in which not yet qualified, will not be disqualified for lack of ability to do such work after a period of thirty (30) calendar days thereon. Employes will be given reasonable opportunity in their seniority order to qualify for such work as their seniority may entitle them to, without additional expense to the Company.
NOTE: ‘Without additional expense to the Company’ is understood to mean that an employee qualifying on a position will be entitled to the rate of pay he was receiving on his immediately previous assignment.
An employe failing to qualify for a position secured by bulletin, or in exercise of seniority will be given notice in writing of reason for such disqualification.
An employe who considers himself unfairly disqualified may request, and shall thereupon be given, an investigation as to such qualifications pursuant to the provisions of Rule 62. * * *
RULE 62. UNJUST TREATMENT
An employe who considers himself unjustly treated in matters other than discipline, or in matters other than those arising out of the interpretation and application of the rules of this Agreement, shall have the same right of hearing and appeal as provided in Rule 40, if written request is made to his immediate superior within twenty (20) calendar days after the date of the occurrence of the cause for compliant.”
The Organization asserts that the Claimant had been a qualified welder for over seventeen years. In its view, this fact clearly establishes that he was a “qualified” welder under Rule 23 and could not thereafter be disqualified based on a question of
his ability. Moreover, it notes the Carrier’s disqualification centered around issues involving a frog. The Organization entered an exhibit into the transcript which established that the frog in question was covered by a slow order, and defects existed prior to the Claimant’s work on the frog. The Organization concludes the Carrier’s disqualification was arbitrary and in violation of the Agreement.
The Carrier maintains that any hearing pursuant to Rule 62 would be “superfluous” because the Claimant was given a hearing prior to being disqualified. The Organization counters that nothing in the Agreement mentions a “disqualification hearing.” It characterizes the Carrier’s process as an invention by the Carrier which in no way dissolves its contractual obligations.
We note that Third Division Award 35405, held, in pertinent part:
“It is the opinion of the Board that there was no contractual basis for the Carrier to have denied the Claimant’s request. The language of Rule 62 clearly establishes the employee’s right to request and be granted an Unjust Treatment Hearing. There is no language of limitation excluding cases such as this one in which an employee is removed from service on paid medical leave for the purpose of determining that employee’s psychological fitness. Moreover, there is no contractual language that gives the Carrier the discretion to grant or deny the request based on its determination of the merits of the claim.
The Carrier chose to take a non-disciplinary approach in dealing with the Claimant’s behavior in the workplace. In so doing, its actions were not absolute but were subject to challenge under the provisions of Rule
62. The Carrier’s determination that the Claimant’s request was frivolous or without merit does not provide a proper basis for not complying with the clear language of the Agreement.”
As the Organization sees it, the fact that the Carrier believed the unjust treatment hearing would simply be a duplication of the “disqualification hearing” does not allow it to unilaterally eliminate the provisions of Rules 23 and 62 from the Agreement. It concludes the Carrier’s failure to convene a hearing pursuant to Rule 62 is fatal to its case. In its view, monetary relief is appropriate to preserve and protect the integrity of the Agreement.
The Carrier is adamant that some positions require certain physical abilities which may, over time, exceed the abilities of an employe as that employee ages. Other positions may evolve with the addition of requirements involving technology or other innovations that substantially alters the duties to be performed. In its view, the concept of permanent qualification does not, and cannot, exist in the railroad industry. It acknowledges that when an employe has met the 30-day qualification period, burden shifts to the Company to prove that the employe has failed to meet the qualifications of the positions. It contends that in such a case, a hearing is required. It points to Third Division Award 35408, where Referee Kenis upheld this right stating: “One must always bear in mind that the BNSF has the right and the prerogative to make determinations concerning an employee’s qualifications for a particular position.”
The Carrier further cites Public Law Board 4431, Award 12, stating “This Board does not have authority to substitute its judgment for the Carrier in a skill and ability matter.” In addition, Referee Lieberman adhered to this principle in Fourth Division Award 4093:
“First, it is well established that Carrier has the right and sole discretion to make determinations with respect to qualifications; we will not disturb that determination unless it is clear, by convincing evidence, that Carrier’s decision was arbitrary or capricious.”
We are persuaded that the determination of qualification is properly made by the Carrier, and review of such determinations are restricted to deciding whether the Carrier has abused its discretion by acting in a manner that is arbitrary, capricious, unreasonable or discriminatory.
The Organization has accurately pointed out that there is no provision for a disqualification hearing in the parties’ Agreement. Rather, this is a practice adopted by the Carrier with apparent long-standing assent from the Organization, thereby affording employes an opportunity to avoid disqualification altogether if they can demonstrate at the disqualification hearing their ability to perform the work in question.
Nothing about this apparently mutually agreeable arrangement has altered the clear, mandatory language of Rule 62. In practice, disqualified employes who have
already been given the benefit of a disqualification hearing, are likely to decline to go through the whole ordeal all over again when the result is likely to be predictable. Regardless of considerations of efficiency and duplication, this Board does not have any jurisdiction or authority to write Rule 62 out of the Agreement, or to create exceptions that the parties never agreed to. Admittedly, the enforcement of Rule 62 in this context is likely to be unproductive and uneconomical. However, these are issues for the parties to address in their negotiations; they do not fall within the authority of this Board.
The record in this case contains specific examples of the Claimant’s poor welding, including the fact that large chunks of metal were falling out of the Claimant’s work, resulting in switch defects. We are persuaded that the same examples of poor performance presented at the disqualification hearing would have been produced at an Unjust Treatment hearing. Hence, we find it more likely than not that an Unjust Treatment hearing would have confirmed the Claimant’s disqualification as a proper exercise of discretion. Accordingly, compensation is not a proper remedy at this time. We order that the Carrier cease and desist from denying procedurally proper employe requests under Rule 62.
Claim sustained in accordance with the Findings.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 23rd day of October 2020.