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                    ~ ~..~D LAW DW1RD 11Oa 7408


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          SROTMHGOD RAILWAY CAN= ®MS=ON !

    TRANSPORTATION COMMICATION· INTURA'1'IONAL UNION


                      and


        SV1tLSNOTOV NORTHERN RAILROAD COMPANY


AWARD HO. 111

rise Had Sea OL-01-18


                I

                s~,~;~t~rr of ctaxat


1. That the Burlington Northern Railroad Company violated the terms of the controlling Apraaeat, partiaularby Rule 35(a) and Rule 14(c) when they tailed to investigate Twin cities seniority District Carman john s. Walsh before terminating his lima carrier Service.


2. That the Burlington Northern Railroad violated Article vIII of the November 79, 1966 National Mediation Aqraeaent when they railed to recognize Mb. Walsh,'$ Carman Seniority in the Twin cities Seniority District.


7. That. accordingly, the Burlington Worth&= Railroad be ordered to return Mr. John a. Walsh to active service and reimburse him for all weqa loss incurred duraag kite tine he is being arbitrarily withheld from active service and in addition restore all fringe benefits including vacation, Seniority rights uninpaix*d, pass privileges and be made whole for pension benefits and !or any other benefit that he would have earned during the period of time that ha is being withheld from service commencing November e, 1990 and continuing until properly restored tq ;q;Iy, vgvige.

--__;_ _ -_~yb~-ICI ~-

 LZaaiIaAi Under date of October is, ilso, Ehe Claimant received notice free the Carrier whiou read is pertisslnt part as tollowss
                sons employment with ftrliagton Northern

      Bailxaad is tarainated sfreotive October ii, 1990 due to'

      your gToae xjironduot.


At the time this occurred. the Claimant was an exempt employee working without an employment contract. He had been promoted toy thin status from a position as Carman and had retained seniority status as a Carman under the appropriate ruin. Upon being notified as quoted above, the Claimant inquired as to "vacant positions witisin the seniority district so that I can exercise my seniority,) as allowed for 9'.n Rule 14C". He was then advised by the Carrier as foilowas

      This is to advise that because you were dismissed fro: service with the Burlington Northern Railroad effective October if, 1990. your employee file has been closed. Therefore your reque~t to exercise your seniority is respectfully den inl


      Rule 14(c) reads in pertinent part as followas


      art employee involuntarily relieved from an official. dr supervisory position with the Company . . . may within thirty (30) calendar days thereafter return to his former position provided it has not been abolished or a senior employee has not exercised displacement rights thereon.


.; M
 c- _ ~ Viz.=

 me Osganisation argues that tae Claimant was ontitlod, under; the circumstances of his being "1nimluntarily rolieveda from an exempt position. to exercise his Carson seniority under Male 14 (o) . it follows, according to the organisation, that any disciplinary. i action taken aqainst the Claimant rust be preceded by an investigation under Rule 3s(a1. which of course did not acaur in this instance.
 The organisation also notes that the claimants seniority) retention as a Carman is ensured through Article VIII of the 1986 National mediation Agreement.
 The Board finds the organisation,o position is correct in I instances wher% an amployeo leaves exempt status While at= a dInQAM"In.%Mtt , statma Nith jute Carrier. mere, however. the claiaunc was terminated from employment for alleged cause. while the Carrier had the option (which in many eases is elected) simply , i to ralesse the Claimant from his exempt status, it is not required to do are. Rather, the Carrier aloated to terminate the Claimant.
 in sof this position, the Carrier cites rourth Division j Award No. 2511 (mailer) as well as others following ttse same reasoning. fourth Division Award states in pertinent part as followers:
      In ardor for the Board to hold that olaiaant"s

      ta=lnation was improper it would be necessary to find

      that carrier violated an enforceable limitation oat its

      otherwise unrestricted right to terminate employees with

      or without cause. Hut these was no contractual


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