NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD NO. 63
Carrier File No. iMWB 92-03-02C
Organization File No. S-P-464-T
STATEMENT OF CLAIM
1. The Agreement was violated when, after having
been dismissed on November 15, 1991 from an exempt
position (Trainmaster), Mr. M. J. Forgey was precluded
from exercising his Maintenance of Way seniority onto a
track foreman position at Kettle Falls, on December 10,
1991.
2. The Agreement was further violated when the
Carrier terminated the Maintenance of Way seniority of
Mr. M. J. Forgey without affording him a fair and
impartial investigation as required by Rule 40.
3. As a consequence of the violations referred to
in Parts (1) and (2) above, Claimant M. J. Forgey shall
be reinstated to service with seniority and all other
rights unimpaired and he shall be compensated for all
wage loss suffered beginning on December 10, 1991.
F I N D I N G S
The Claimant held seniority within several Maintenance of Way
and Structures Department classes. Prior to November 15, 1991, he
was promoted from a Maintenance of Way position to an exempt
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supervisory position as Trainmaster. By letter dated November 20,
1991, he was advised in pertinent part as follows:
Effectively immediately you are relieved of your
position as Trainmaster at Kettle Falls, Washington, and
dismissed from the service of Burlington Northern
Railroad . . . .
If you disagree with this decision, the company
policy allows you to request an Internal Complaint
Resolution procedure and/or Arbitration . . . .
The record shows the dismissal was for alleged cause. The
Claimant thereafter sought placement under his seniority as a
Section Foreman. To this, the Carrier replied in part as follows:
As a dismissed employee, your employment file has
been closed and your name removed from all seniority
rosters. Therefore, your letter of December 2, 1991 -
indicating your intent . . . to displace the section
Foreman at Kettle Falls . . . is respectfully declined.
The organization contends that the Claimant's seniority rights
survive his service in an exempt position and that he may not be
removed from a Maintenance of Way position to which such seniority
entitles him without an investigation under Rule 40. The
organization points to Rule 16, which states in part as follows:
C. An employe relieved from an official or supervisory position with the Company . . . may, within thirty
(30) calendar days thereafter, exercise seniority over a
junior employe in accordance with Rule 8 . . .
In this instance, the Claimant was not simply "relieved" from
an exempt position. His employment with the Carrier was terminated, and he was offered certain appeal rights arising from such
exempt status. In accepting an exempt position, the Claimant had
placed himself at the discretion of the Carrier as to his continued
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employment, subject to certain Carrier-initiated appeal rights.
Despite holding certain seniority rights if and when, as an
employee, he returned to the bargaining unit, the Claimant had no
contractual protection against his employment termination in his
status as an exempt employee.
Further, the concept set forth by the organization that a Rule
40 investigation was required is not applicable. The Claimant's
termination of employment involved his conduct as a Trainmaster.
A Rule 40 investigation, concerned with alleged conduct of
employees in bargaining unit duties, would hardly be appropriate.
Public Law Board 3408, Award No. 111 (Marx), as cited by the
Carrier, is of relevance here. That Award stated:
The Board finds the Organization's position is
correct in instances where an employee leaves exempt
status while still holding employment status with the
Carrier. Here, however, the Claimant was terminated from
employment for alleged cause. While the carrier has the
option (which in many cases is elected) simply to release
the [employee] from his exempt status, it is not required
to do so. Rather, the Carrier elected to terminate the
Claimant.
In- support of this position, the Carrier cites
Fourth Division Award No. 2511 (Bailer) as well as others
following the same reasoning. Fourth Division Award No.
2511-states in pertinent part as follows:
In order for this Board to hold that
Claimant's termination was improper it would
be necessary to find that carrier violated an
enforceable limitation on its otherwise
unrestricted right to terminate employees with
or without cause. But there was no contractual limitation on Carrier's right to terminate Claimant, since his employment was not
covered by any agreement.
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A W A R D
Claim denied.
HERBERT L,4r, Chirman and Neu ral Member
`, HAPPAU ~W, Emj~loyee Member
D. J. /AERRELL, Carr1 Member
NEW YORK, NY
DATED
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