Upon the whole record, after hearing, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.
Claimant herein entered Carrier service in 1976. As of February Ist, 1984, he had seniority rights as a Track Supervisor in the Track Sub-Department. By letter dated June 3rd, 1988, Claimant was disqualified as a Track Supervisor, due to a "wide gauge" which Carrier alleges should have been detected by his regular inspection as a Track Supervisor. As a result of this disqualification, Claimant made a displacement as a lead machine operator on June 27th, 1988.
Carrier argues that in this instance, Claimant was not disqualified as a form of punishment, but rather was prudently evaluated by Carrier, who determined that his fitness and ability to perform the duties assigned to him was in doubt. Carrier maintains that it is clear from many, many prior decisions, that a Carrier has the right to determine whether indeed an employee has the fitness and ability for a particular position. Such a decision, as Carrier views it, cannot be disturbed unless
3 it be shown that it was arbitrary, capricious or otherwise improper. Carrier states further that it is the Petitioner's burden, in such an instance, to establish that the Claimant indeed has the appropriate qualifications to perform in a particular job. In this instance, Carrier notes that Claimant has not demonstrated the fitness and ability to occupy the position.
The Organization maintains that the rules specify that Claimant conform to certain requirements in establishing seniority for his position. In this instance he did so, and was indeed qualified in established seniority in the Class of OOA Track Supervisor.- Petitioner insists that Claimant in fact was handled on a disciplinary basis, without the proviso of a hearing, which is called for in a disciplinary circumstance. As a matter of fact, Carrier by issuing 45 demerits for the alleged responsibility in the January 29th derailment incident, indicated that discipline was indeed behind this entire matter. Petitioner believes that Carrier violated the rules by maintaining that the first incident was a disciplinary matter, and the second was not, and both incidents were sufficient to disqualify Claimant. Petitioner cites a number of Awards which attest to the fact that a distinction must be made between discipline and disqualification, and they cannot be confused. In this particular case, it is apparent that Carrier disqualified Claimant for two specific reasons, the January 29th derailment and then the incident cited in the disqualification as occurring on April 25th, 1988. The Organization argues that these were not matters of qualification, since he was clearly qualified to detect the wide gauge in the derailment and qualified'to note the potentially hazardous condition, which existed on April 25th, 1988. Thus, the Organization maintains that in this instance, Claimant could have done everything that Carrier asked of him, and was capable of doing the inspections required. In this instance he was disciplined because he did not carry out these normal instructions, as Carrier has assumed, rather than because he was not capable of doing so. Therefore, the
4 actions taken were discipline and Claimant was not accorded the normal rights, which a disciplinary matter entails. Thus, from Claimant's point of view, and the Organization's point of view, the claim must be sustained.
The issue in this dispute has been dealt with on many occasions in the past. It is particularly important to note that in this particular case, Claimant was disciplined (and signed a waiver) for the incident occurring in January involving the derailment, As such, it is relevant to note a Board action outlined in Award 75 of Public Law Board 2774, which is closely related to this matter. In that Award, the Board stated:
It must be noted in this instance, that Claimant had successfully performed the functions as a Track Supervisor for some 4 years prior to the circumstances involved in his disqualification. It is quite clear, that Claimant had the ability and the skills, to accomplish the functions of Track Supervisor, since he had done so successfully. However, his failure to execute his responsibilities appropriately does not constitute a lack of skill or ability but rather the failure to satisfactorily perform on two instances. One of those instances had been already handled as a
disciplinary matter and there is no justification whatever, to attribute the two instances to a total of circumstances requiring disqualification. The time for disqualification had long since disappeared. If Carrier desired to disqualify Claimant on a disciplinary basis, it had the option to do so. That was not its choice, since he was not accorded the rights which he was entitled to, to defend himself against such disqualification for disciplinary reasons. Thus, based on the entire record of this matter, it is clear that the claim must be sustained. In sustaining the claim, he must be restored to the position of Track Supervisor and paid the difference in pay between that which he earned and that which he would have earned had he remained as a Track Supervisor from the date of the disqualification until restored to that position.