The Board, after hearing upon the whole record and all the evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended: this Board has jurisdiction over the dispute involved herein; and, the parties were given due notice of hearing thereon.
The dispute at issue arises as a result of the Carrier dismissal of the Claimant from service because he twice failed promotional examination for locomotive engineer after entering the Carrier's en-ineer training program January 18, 1999.
An employee of the Carrier for five years, and a promoted conductor for the past four years, the Claimant's dismissal from service followed a formal company hearing into a charge that reads as follows:
Following the company hearing, the Claimant was notified by letter of July 20, 1999 that he was determined to have been in violation of Rule 1.3.1 (Classes) of the General Code of Operating Rules, and that he was therefore dismissed from service effective that same date.
At the company hearing the Manager System Training Center testified that the Claimant was told at the beginning of the training class that it was necessary to attain a passing grade of 85% on a written examinatibn for promotion to engineer. Further, he said that the Claimant was told that if there ivas a failure to attain a passing grade on a first attempt, that he would be afforded a second attempt, at which time, if he failed both attempts he would be "removed" from the training program. The Manager System Training Center also testified that when the Claimant failed in a second attempt to pass the written examination that he was informed, on June 28, 1999, that "he was being removed from the training program and he must report to his local supervision-"
The Manager System Training Center also introduced into the hearing record copy of a Carrier Notice to Locomotive Student Engineers. In part here pertinent, the Notice, copy of which the Claimant acknowledged as having received on June 7, 1999, reads:
On cross examination, the Manager System Training Center was not able to cite any rule of the aforementioned "respective agreement," of the Controlling Agreement in the case here at issue, wherein it is provided that a failure to successfully pass examination for promotion to engineer will subject an employee to a formal investigation and dismissal from service. The Carrier witness said that the Claimant "was simply removed from the training program, and because of company policy, if they fail required examination, they cannot revert back to their prior craft."
When asked if he had a copy of the company policy that he was referring to, the Manager System Training Center said that he did not have a copy of such policy, but that it was his ``understanding of the company policy that has been given to me to enforce." Next asked if he had ever seen a written copy of the policy, the witness said: "No sir. But I am basing it on past precedence that I have observed."
The Superintendent, Transcontinental Division, who was identified as the Claimant's immediate supervisor, testified as follows concerning the Claimant having reported to him as directed by the Manager System Training Center:
In response to questioning concerning the Claimant being removed from service, the Superintendent first said that the Claimant "was not removed from service," and then said that he meant to say that the Claimant was "dismissed from the engineer certification training program pending an investigation." Subsequently, when asked who had made the decision to remove the Claimant from service, the Superintendent said that it was on the ad-visement of the Manager of Training Operations, albeit he then offered that final responsibility for such action rested with his office as the Superintendent of the Division.
When questioned as to what portion of Rule 35 was applicable to the removal of the Claimant from service pending a hearing, the Superintendent responded as follows:
Thereafter, when asked to identify the agreement in which such a rule would be found, the Superintendent said that he did not know the rule "off hand."
In further examination, the Superintendent agreed that there is no engineer training agreement in effect on the Carrier property here at issue, the MidSouth Rail, either in the
not conflict with existing rules of a collective bargaining agreement. Thus, in the instant case it would have to be recognized that even if the training program which the Carrier provided to the FRA was to be viewed as a policy, that any provision in that training program found to conflict with existing contractually negotiated rules with the organization would have to be viewed as being of no force and effect.
Although the Carrier maintains that the Claimant was in violation of Rule 1 3.I of the General Code of Operating Rules in a failure to pass what it calls a required examination, the Board does not find that it may be properly held that this particular rule has application to the case at issue since the Carrier has not shown any rule of the Controlling Agreement that makes it mandatory that a train service employee be required to pass a promotional examination for service as an engineer. That there apparently is no rule covering such a matter is evidenced by the testimony of the Carrier witnesses that the Claimant had only been told that a failure on a second attempt to attain a passing grade would result in his being removed from the engineer training program. Nothing of record shows that the Claimant had, in fact, been notified that a failure- to pass examination would result in his dismissal from service.
In support of its position that the Claimant was xTongfiilly dismissed from service, and should instead have been permitted to exercise his retained seniority to train service, the Organization directs attention to Rule 54 of the Controlling Agreement, which reads:
Aforementioned Rule 19(e) in paragraph (a) of Rule 54, the only provision in the Controlling Agreement that is said to mention the word or term, promotion, reads:
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Clearly, it is eirident, as the Organization argues, that neither the language of Rule 54 nor that of Rule 19(ej may be property read as requiring a train service employee to enter into an engineer training program, much less that if they do so, and fail to pass promotional examinations, that they will forfeit their retained seniority in train service.
The Board does not have the authority to go beyond the clear and unambiguous language of an agreement that has been duly executed by the parties. Nor may the Board construe agreement language to cover matters that were not mentioned or covered simply because the intent of the original Iangujage is found wanting of new or additional application at a later date by an interested party because of certain changing conditions in the work place. ~Ve are obliged to apply and interpret agreement language in terms of what was said and meant by the parties at the time it was negotiated.
In the light of the above considerations and overall study of the extensive written and oral arguments of the parties, the Board finds that the Carrier has failed to meet a necessar burden of proof to hold that it had the right to remove and terminate the Claimant from sen-ice because he trice failed to pass written examination for promotion to a position of locomotive engineer. Under the circumstances, the claim will be sustained.
As to that portion of the claim which requests ""pay for all time lost" the Board holds with decisions of prior boards that have adopted and followed the common law, rule of damages to permit an offset of outside earnings and compensation, with the calculation of time lost being based upon the Claimant's attendance record by going back one year from the date of his removal from service.
Robert E. Peterson
Chair,& Neutral Member
Kansas City, MO Marchs0, 2001