PUBLIC LAW BOARD NO. 2439
PARTIES Brotherhood of Maintenance of Way Employees
DISPUTE: and
Southern Pacific Transportation Company
(Western Lines)
STATEMENT OF CLAIM:
1. That the Carrier's disqualification of Track Foreman, S. R.
Cohen, on July 5th, 1988, was improper, without just,
sufficient or reasonable cause, and in violation of the
Agreement.
2. The Carrier shall now return the Claimant to his position as
Track Foreman, and shall compensate him at the Track
Foreman's rate of pay beginning July 5th, 1988, until such
time as he is restored to the position as Track Foreman.
FINDINGS
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.
The record indicates that Claimant had entered Carrier's service in July of 1984.
He was a graduate of Carrier's Student Foreman Program and had been working
as a Foreman for over 2 years prior to his disqualification. On July 5th, 1988,
Claimant was disqualified by Carrier by receipt of the following letter:
Since establishing your Foreman's seniority of June of 1968 your
performance in this class has been less than satisfactory. A rundown
of reports and comments from various supervision is as follows:
June, 1986 Complaints from members of
your gang of your being
boisterous and using profanity.
October, 1987 Your remaining in motor car,
failing to divide gang and make
proper inspection of passing
train.
June, 1988 Your failure to follow safe work
practices while setting spikes and
operating jacks at derailment.
June, 1988 Your allowing two men to be
absent from your gang, leaving
your territory virtually
unprotected over the weekend
and your failure to report the
gang's time to DAR as
instructed.
Although you were not working as a foreman, there was also an
instance in January of 1987 wherein you were argumentative to your
Foreman and fellow employees and had difficulty receiving
instructions from your Foreman. Also, in 1986, you were absent
without authority and were dishonest about your reasons for absence.
Although you have been counseled on various occasions by various
Roadmasters, the behavior you have demonstrated is not appropriate
for a Maintenance of Way Foreman and it has not improved.
You are hereby disqualified as Maintenance of Way Foreman.
'Carrier states that Claimant's disqualification was triggered by his failure to follow
safe work practices while setting spikes and operating jacks while he was a Track
Foreman at a derailment near Eddyville, Oregon. Carrier insists that the record
indicated that Claimant was incapable of efficiently performing the duties of a
track foreman. Carrier notes that numerous awards of many Boards hold that it
is the sole responsibility of Carrier to determine the fitness and ability of an
~u3q-1)
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employee. In this instance, Carrier believes that its decision was appropriate, and
denies the Petitioner's argument that Claimant was assessed with a disciplinary
penalty, when indeed he was
merely disqualified
.
As in Award Number 170 of this Board, Petitioner argues that Carrier is confusing
its rights to discipline with those of disqualification. In the current case, as
Petitioner views it, the Claimant had 2 years of successful operations as a Foreman
and a disqualification in this instance was merely an extension of Carrier's right
to discipline and was wholly inappropriate and contrary to the rules. It is
important to note, as from Claimant's point of view, that he was not accorded the
right to a hearing, which the disciplinary process requires.
As the Board views it, similar to the reasoning expressed in Award Number 170,
Carrier in this instance is confusing its right to discipline, with its right to
disqualify. It is apparent from the letter of disqualification that Claimant's
behavior and various transgressions of good conduct were at stake rather than his
inability to perform. In that context the Award of the Board, in Public Law Board
526, is pertinent. In that Award the Board stated:
It cannot fairly be said that the above reasons for removal relate to
"qualifications". The Claimant gDj_Id have done everything that the
Carrier asked him, and was capable of refraining from doing those
things which Carrier told him not to do. He was removed, not
because he couldn't but because he didn't. Under those facts, the
Board has no doubt that the removal was disciplinary in nature.
In this instance it is apparent, as was true in the prior Award of this Board, that
Claimant was improperly disqualified, in fact disqualified instead of being
disciplined, which was the thrust of the accusations made against him. There was
nothing in the record to indicate that he was incapable of performing his duties,
and Carrier
misinterpreted its role in
this instance and its rights. The Claim must
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be sustained. Claimant shall be restored to his former position with all rights
unimpaired and made whole for all differences in compensation from that which
he would have earned had he remained as a Track Foreman, and that which he
indeed did earn during the period in question until reinstatement.
AWARD
Claim sustained as indicated in Findings above.
ORDER
Carrier will comply with the Award herein within 30 days from the
date hereof.
I IvI. Lieberman, Neutral-Chairman
P. L. Joyner C. . Foose
Carrier Memb Employee Member
San Francisco, California
May ~ 0 , 1991