· b) That 1·1r. Howard be reinstated to his former
 position of Sirrnal Test Foreman. Sacramento
 Signal Shop, faith full Seniority and all
 rights restored.
 c) `that bar. Howard be compensated for all time
 lost at his former Foremants rate of pay from
 October 15, 1969 until he is rightfully
 restored to his former position,
 OPIIs'IO1I Or THE i;O.kTD .
 7_?c clai·,.ian'' ~ in this oar, Mr. L. i'd. i_o:':ard, ::ac first em-

 ' ployed 'ay the Carrier on January 29, 1957, and 1?ald pooitions of















_ ,· .. pLQ

that - :.-.
















PL 13,59.6.




                                  A - PR R -:)069


i:.r. L. IT. Howard
 Si;- :;,1 Tost Forcm'~ii
 Sacramento Sit;ial Shop
 Sacra:reiito; California,

 Dear Mr. Howard:

 inlen you were re-instated on a leniency basis December 9, 19J=; till': a colidi l:.i,Jns werii aCCap'Gcd -y you and Y'Lprls_-ntatives of The Brotherhood of Railroad Signalmen.. One of these condi-. . tions required you to confine your employment to positions under the supervision of a For:mian or Supervisor. When you were
 displaced by Mr. J. E. Vlasak from the position of General TCS'
 Maintainer Apr~_11, 1939 you displaced Signal Tcst Foreman,
 D. 11. Larsen. I allowed that displacement: yi the'3zope the time
 since your reinstatement had enabled you to discipline your per
 sonal activities sufficiently for you to succaed on a Test Fore
 man position. _

      Events since then have shown that such was not the case.'

You have failed to properly supervise the activities of men
 placed und;:r you, arid an .'informal inv-astiation made ::y
 Mr. E. A. Thompson and Mr. R. R. Gifford disclosed the unrest
 and dissatisfaction your men have built up.. Furthermore, you
 have disre3arded dir=ect instructions. You were told to dispose
 of an unsafe ladder. On Friday, October 10, 1959 T personally
 saw that ).adder in position for use. Me S:;. ;real Shoe is a mess.
 Mat.ar ia,l and trash are in a clutter x:11 ov cr the Shop area.
 SL;_;iial relays iMvz: been shipped fro!a the Si,aial Shop in an in
 operF-~i.ve condition. You ware instructed by my letter on
 April 10, 1909 that driviiiyour, personal autoi;iobile during
 iror=a-._ hours for Company business was not to be done without
 proper authority. Twice this past week you have ignored these
 instructions and driven to Bilby Road in Franklin.

 Also twico in the past week you left the job site at Bilby Road in your personal automobile at appror_imately 3:30 PM and a7,jp&rcntly wont; home ahead of tine. Your man had to tiring the true?ls to the Signal Shop, put away the tools, and lock everythin, vi? for the niGht. From this I can readily understand the f.:1:i~i,~ of your zl,a that you have .ivvn th_::1 li~t?_O Cu7Crvision, and caused them to assume a number of your r·osponsiUilitius.

 This has occurred only four weei:s aftar your bc11_; advised _ is Ll;j ~. :i. t·~r of u: j) t~.mbr 12, 1 366th^':. ..°.la~':.'t~i_-U.? ..:_ your ...,:n trust i:::rvv.:. I cannot tol~ra to such ~a situation and -.iust t.iZ~,r0'iCil'e rla3_:.:'PC ~rOU of ~rcur duties as Si_;:Y< 1 To.^aL fGl'oCial'1 Ui ti7.3 Sacrarcunto Signal Shot.). You have not sliU:-r_Z th-_.= ouall.fica-

                                              PL (3 5a6 .. .- .


      J_ i1

      l.ionu'I1^ved--d for .^,^1:.1.^.·.:`.t'.~.f:!'' iC1(=din_, the roc!

      of th,-' .i0: . B` % _ :~L:i:~ F.!.'_ :.nib h:,,y:. em t'; ';.~ caRc.nr Y J71 '

      _ac',: of personal dicc:iala.r:., of acl;ioIi that r'.:;;ulted in

      -ur rl=.sc.:~r.:J~'= mz Uov'=i~:.:~' .-^.'r' 1_064. you ·.-?.i.t ,;c

      1'elCVCd fVO!S '·'rOLtr ;Or:~S;~1:'l. t)Ogiti0:'1 ^fft?CtiV:! Y;7.a-h tile

      close oz' business Octobor hl-, 1969.


      Be governed try applicabl a rules of the AE;r eement

      ,j'e twecn :.he Brot-'-.1- hood of Railroad ~i~;nalm :~z and

      . One Westcrn Pacif_Le Railroad COmpa:iy. In case you consider your cU5lualiicatiOV from the positioa o_' Signal Test Fore?an, Saerm-onto Signal Shop unjust, you may request a h:earinG; vunder the provisio?Zs of Rule 72.

          A copy of the reinstatement letter dated

      December 7, 19'04, froi:i Mr. t^J. A. Tussay to Air. R. T. _

      Dates, is attach,-,d for your reference.


      B. L. I?C IKEEPILL

      Attachment

it vmuld ^.nn~?-,r from the record that at the October 14,. 1959 raceting, the Carrier advised the claimant that he could work on a vacant position as Si,-nalman at the Sacramento Shop beginning October 15, 190'9. Furthermore, the Carrier personally delivered a joL circular to the claimant at his hom. on October 14, 1959, Nhien circular adver tis-d the vacant Si-Sllal:v'13.1 position at Sacra - mento. Howevor, the claimant chose not to suwiiit a Lid on that vacant position. Tnstf.:ad, he suumitted tie insto=it claim shall-ngin. -the Carrier's action of removin.- him front the Signal Test Foreman position. Neverth-less, and without prejudice to his claim, the clairiant too a Signalman position at Stoc:iton, California on January 13, 1970 and presumably still occupies that position. .
 Th·· claim in this case is bss^d on an ~iI1^-ation that the Carrier violated Rule 'Fl of the Agreement :in r::?ovin~ the clau:iant f ro: the Signal T6st Forer.an .position. hula 71 provides as follows:
                              . . PL a 5a/0

                                                      .: ~: .:


    ~1RL.a.;` '71. - Inv;·Ntj: ,I.; .~a _~:. 0. :'i.~?ls.:~:~:


          An employe sb.:111 11VL 1-:i`. C1.:~::,: _'..'.~.i..~'~ "^i

    Without a fair · and if::r.a1' i:ia1 :Li1~C32:1.: ;a ~l.!? . n-v (?. r eas

    on;tblo time prior 'U-(j 'i:)1:· heai-iiE__ 11J shall be a;7prisad

    in rn itin;?> of the s~oc:iJ.'.~c ch^.r:.:e a- ins t ilicn. Such

    investi gation trill 0e hold iriia·:i.u ten (l0) cale:i!dar

    days after the allc2;~d offense. :2a~ cioc::2 co::ctittc_;1 or

    within ten (1J) calci?L''rx days from :i7e ti t11C "ana;;e- .. ,

    ment alas 1C.nowl cdE;e of the alle~Qd offenze', ,at which'

      heal: ink the ciaploy a shall hav<: a r cas·Juci?1 ~ oppo2'LLlility .

      to secure necossary i'Tltness-es, 2tnd may vC r::prerented,

      by duly authorized ro_)r:;sentati.v·as of th:~ Brotherhood.

      of Railroad Si.',.naiii:::n o' an om2_'Jvc ~o?;~a;l"_ within the

      Scope of this Agr cement. However., he may 'be held out _

      of service pending such hearing.


      A decision will be rendered crithin ten (10) calendar days after coiaplotion of investigation. 5;711=n a

      decision is rendered, if employe beliot:es it unjust, _.

      his case may be ta:cen up on a..l?p~al within ten (10)

      calendar days after date of such decision (submitting

      in writing reasons thcr efor), to the hiL;her officials '

      whose decision shall be subject to appeal. The rite ht

      of app·.sal by r.·mloyes' representative to the Chief

      Operating Officer or his representative is hereby

      established. If the ,;ud;:mont i..^, in favc.r of the

      employe, he shall be compensated for wage loss suf'er

      ed by him, and the charge str 9.c:en frog: the record.


      A copy of the transcript of the tcctimory taken at the investi"ation shall be furnished tho employe's rsur:aut2Lai;is_a. 11

          The thrust of the claim. r-iatc:d to tile alleged viola-

tion of Rule 'Tl is that rila claimant- i;as in tact: removed from his
 position as Signal TCst Foreman as a. discinllnary matter; that -
 when an employe is disciplined, he Is entitled to the protoction
 provided him under Rule 71, such as the ri`ht to a ".fa-.r end 3m2
 partial investigation" after he is apprised in writin;; of the
 specific charges that have ,been leveled a-,^a_ls t h:i.:n, t?le ri;;ht of
 the. employe ln.£uch "invest'-ation h_ariir1=,,fit to s-ccuii-, nceessary
 ratness~`;: ;,o t:jstify, a_nd th;: ri; ht to bra ,..·-_nrcse~it ~:?. .; i; talc
 11 :`ari n,',T, L .y Cluly au Lhor i£ed r:.;~rC`i: a?'·. ·.^.'.a'ro''~S 'of 'hv Or:,.'?!:izatioil.
 . . . . P~ c~ o55 9. ,. :C..CC'Lion, C~::F i.'1':._ t]li: Cr,'o__za'tion, :eat riot a.T.ferdcd ti1C

      . . .:`1't, ^117, t.vr:?fo1`.`, his. _.:.i:)val fro;:: his Si--na 1 lest Fore- T


        _.._.i;ica t:as :].ralJroy _..


            `.T1:: C:nrr_ir.r, on the oth3r hand, tair.es the position


    .__:~.~. t]Z·~ clairaa_Zt eras no1'ther diaciuiined nor dismissed from the


    Si~.ual i-s~ Foreman IJosa't1011. 'iii- Carrier contends that the


    e:Ua:::ait ,-.,as rc:.noved fro_: that position because of his lack. of


    quPlifications to perform the job, and that the Agreement does


    not prohibit the Carrier from so doing. Tile Carrier contends


    tha:; Rule 72 of the Agree!aent is applicable to the facts in this


    case, that th;: claimant was informed o= his right to request a


    hoarin~- pursuant to the provisions of Rule 'T2, and that the


    claic._ant did not avail himself , of the opportunity of such a hear-


    .:.n:_: by failing to requi;:st one. Rule 72 of the Agreement provides


    as follows:


        "Rule 72 - Unjust Ttreat.nant:


          An c!rnloya who considers himself otherwise unjustll: ur,at2d shall havthe sam:: ri -at of hearing and a:;lpeal as provided above if written request is laade ~o his :iumediate superior within t;:n. (10) calendar da*.-rs of cause of complaint.


          Ant' colilnl a int made by one e71ploy a aaai'nst anoth-er shall be made in writin.-." - '


              :C11 the light of the Carrier's dafense to the instant


    cla'i: that the claimant was not disciplined but ryas removed be-


    c< vs:: of lac!_ of quei iftca tion s, the Or.~anizati on contends that


    the Carrier cannot remove an ernploye for lack of qualifications


    a.f t..e ^ he ha r , be Dn in a position for thirty days. Thr~ Organiza- -


    i.:.~ : cite- R~:.l :: r>0 of th°o Agreement in support of this conten-


    'i:_on. RuLJ Y) of the A~rc:El!1ant reads as follows:


                              J.

                                        ' _ . . .,~:,l, . ; . k .


    °Zul- :~0 - Assl:nin:,, Pocii;iens,:


    In transferring employ es to fill vacancies or new positions in Lh::ir u-,an class, seniority shall ;ovei:~. An e:~c~lo~-:: tr:.u;sf^rrcd in the exercise of seniority rights in h=s orrn class and failing to ,;,

      qualify within thirty (30) calendar days may e-xer-.

      ciso his seniority to displace th:: junior cmploye

      (i_f his ;;union) iii the sa.11e seniority class; if no

      eihployo his junior in that class h,~! may displace

      `he Junior =mtjlo-J^, (if his junior) in the next

      lower soniori.ty class in which his seniority will "'

      permit him to work."

          `.L'he Carrier responds to the Organization's contention ',

retarding Rule 60 by asserting that it may remove an employe from .'
 a. position for lack of qualifications at any time that it can beg
 established that the employe in fact does not possess the neces
 sary qualifications to perform the duties of the position in
 which h4 is an incumoent. in other words, it is the Carrier's
 position that Rule 60 does not. impose a thirty day limitation on ,.
 the Carrier in removing an employe from a position because of
 lack of qualifications. Rather, says the Carrier, the thirty
 day provision in,Rule 60 limits the employe in his right to dis
 place other employes when he is disqualified from his position.
 Th.:t is to say, according to the Carrier, Rule 60 gives an
 employe a right to exercise his seniority rights to displace
 other employes if the employe is disqualified within thirty cal
 endar days following the assignment to the position in which he
 is found to be unqualified, but that Rule 60 does not restrict
 the Carriur to any time period in removing an employe from a Posi
 tion if he :i.P determined to b° unqualified in that position.
 Insofar as Rule 60 is concerned, tho Board finds it urinrcecsaz-;; to make 'a determination in this case .:,s to whether t;h'r Carrj_::r1c intarpr~xtation or the Organization's interpretation
                                                      PL. 12). : 5 ~~ _


        of .tl.,at Rule is iha c._?°:::,. _A o:.td ckrc ;oard wishes it to be


        axpr_as...

              ly undcrstooct ; a : = , , -: in th. i.~^ Oniriion and Aerard is

    -

        infieud.Y~ r..;, zo:a:_.t.i.~ . , .

              ,d to indicate in an,001 wel.y irlrcther or not the Carrier can -

        _. disqualify an employo aft_r h,: has -been in a position over thirty ,._ calendar days. A detcr1n_nation on that question is not needed in - this case for the f ollowinreasons .

        The r -nal i;,su-) in this ca sa, as the Board sees it, is . . whether the claimant was rmov.~!d from the position of Signal Test Foreman because of his "lack of qualifications" as contended by the Carrier., or whether his removal was disciplinary in nature, . - -

          as contended by the Oreanisation. The Carrier asserts that it - .

        has the unrestricted right to determine "which course to follow,

        that is, disqualification ox- discipline". (Carrier's submission,

        p.14j. in this regard, the Board believes the Carrier to be

        clearly wrong. .

      The Board is of the opinion that there is a distinction between a situation on one hand wh3re an employe simply does . not possess the s?:ill or experlenca to perforta a job and the


I
 failure of satisfactory performwnce is not attribute:ae to any
 "fault" on th.~part of the employe in the .sense that ha could do
 i
 the job if h:: wanted to, and a situation on the oth_r hand where
 w an employe has the native ability to do the job but does not do
 . so because he is careless, insubordinate, or does not follow in
 structions or directions that he is capable of following. The
 form--r situation* is-clearly one that irr:·olvt~s the issue of
 I
 . . . . . PL (3. ..5.~... .-_.

 "qualifications" and th;: l.a:tt~r docrs not. One might say, for exr~ra~l.·, that an eriploye trio is-removed from his ,job for stealing .. is rcn:cvad on th:: basis :;hat any Pcrson who steals is not "quali-. f ied" for the job. Howevor, it is clear to the Board that in

 such an example, removal from a job for stealing is disciplinary ..
 in nature and does not involve the question of qualifications as
 contemplated or intendcd b;; the :Agreement. The Agreement provides...
 for a very specific procedure to be followed when disciplinary
 action is taken against an employe,, and that procedure cannot be
 avoided by calling the action by another name.
            .This is not to say that "lack of qualifications" and _

"discipline`s are in all cases necessarily mutually exclusive.
 There certainly could be and undoubtedly are situations where an
 employe -is both unqualified for a job and has conducted himself in
 such a manner as to ,justify disciplinary *action./ Take, for
 instance, a man who does not possess the capabilities in terms of __
 knot:·lede, ability, or experience to perforia the job in question
 and vrho also shows up on the job in an intoxicated condition. In
 such an instance, the Carrier could well have the option of decid
 ing which route to follow in removinS the employe ft=.)-, his job --
 removal by disqualification or removal by disciplinary action. .
 However, the facts themselves must govern which course of action
 must be taken in any Given situation, and simply sayin;,, that a man
 has been removed for lack of qualifications does not in and of it
 self rcae it -so. , ' -`
 This 1:rinZs tho Board to a consid::ration of the .('acts in this case. The claimant was r-.-moved fro^! his job !or a numb=r

                            g.

                                    . . . PL a .69.6 .


        of .. ~..^,: On:i S sot forth i:l th.. Carriai '.s_. October 1!", 1969 letter-, . to the claii:iant. ""he first stated reason was b=cause the claimant h,·:d if fai led to properly sup :rviso the activities of men placed under you.". (Emphasis supplied. NOTE: The charge tras that the cl0L.ant had failed to supervise properly, not that he V,as not ca-_a.)le of doing so.) The second stated reason eras because the claimant had "disregard==ed direct instructions". Several examples were given in support of this reason: (1).The claimant had not disposed of an unsafe ladder that ha had been told to get rid of; . (2) he had not seen to it that the Signal Shop had been cleaned up; (3) Signal relays had been shipped from the Signal Shop in an inoperative condition; (4) he had driven his personal automobile during working hours for Companyybus iness in direct violation of Carrier instructions; and (5) he had left work, ahead of time.

        It cannot fairly be said that the above reasons for removal relate to "qualifications". The claimant could have done ' everything that the Carrier asked of him and was capable of


                                    Y

        refraining from doing those things which the Carrier told him not to do. He ryas removed not because he couldntt but because he

. didn't. Undar those facts, the Board has no doubt that the remov-
          al was disciplinary in nature.

          Havinmade this determination, it follows that the

          Carrier was raquir-od to follow the provisionssof Rule 71 and it

i.

          did not, amon`, other things, conduct a hearing as required in that

        Rule and did not provide the claimant the opportunity to secure


                                    10. '·

. , . . . - . .-PL C3; ::_596:, ; ,,

    ..__;n::;:,:>>~ to tostif;· in his 1'. half at such a hearing. Consequent '.y, the Board finds that the Carrier violated. Rule 71, and that ;:h:: claim h^.s merit.

    As for the re^qedy for this violation, the Board b-lisves that the claimant had the obligation of mitigating the Carrier's damages while he was pursuing his claim. When the Carrier offered him the Signalman position at Sacramento on October 14, 1969, the claimant should have,taken that position since the Carrier did not make that offer~contingent upon the claimant's dropping the instant claim. Consequently, the Board finds that the claimant is entitled only to the difference in pay between the Signal Test Foreman's position and the Signalman's position for the period between. October 15, 1969 and the date when the claimant took the S3_gnalman position at Stockton. Furthermore, from the date the claimant took the Signalmen position at Stockton to the date that the Carrier offers to return the claimant to the Signal Test Foreman's position, the claimant is entitled only to the difference in pay between the Stockton Signalman position and the Signal Test Foreman position.

    As for reinstatement of the claimant to the Signal . Test Foreman position, the Board makes the following observations: The claimant has travelled a rather bumpy road in his'employment history vrith the Carrier. The Board has=no basis for evaluating what would have happened to the claimant had the Carrier removed him under Rule·71.Fnd followed the procedures undor that Rule. Suffice it to say that it is possible that th:: result may well have been dischari;c. In fact, there is every indication that the


                                11..

nn ·., .:. r i7: C:hich the Car-, _.::r cc ciducted itself' vis-a-vis he claimant'
 :.,._ .~.i_'~::n(1,=C! t:0 ~_1.V:. 'i:i1.. C~A_ .,:cti: a" brca:. and to avoid the
 i,
 _!T_n:: Doard h:~liev'~:, D7·I'c it is reouir ed to direct tha - .
 Car _-. _-r to offer reir7: tat cmcnt to the claimant in the Si>n~ al Test
 For^nan po sition, and Jcc does so direct. At the sane time, it is

 apparant to. the Board that if the charges against the claimant

 while he .was in that position w~-3re true and if the claimant Were.-' not to improve his job performance after,his reins tatement,.:he .is

 liicaly not to remain in that position for, very long. Therefore,.. tli~2 _ioard urgras the clair.Lont to consider deeply whether he should accept the Carri'er's offer of reinstatement to the Signal Test

 Foreman position.

 Is directed to offer the claimant reinstatement to the position of
 Signal Test Foreman and to compensate the claimant in accordance
 with 'chi ab-v:: Opinion for .:ag:: loss suffzrod from. October 15, .
 15S9 to the date of such reinStat'e~ment offer. -
 2. The claim to the er.t-~!n-c that it is sustained is to be -
 implemented by the Carrier within thirty days from the date of
 this Award.

 The Claim is susta in^d to the ell that.the Carrier

 ----------------- ---------------
      Dated September 3 , 1970·