Public Law Board No. 6402, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute were given due notice of the hearing and did participate therein.
Claimant entered the service of the Carrier an November 9, 1992, and has held a variety of positions including that of BUC Undercutter Operator that he was assigned to on April 1, 2011. Six days later Claimant was disqualified from the position.
It is the Organization's position that the Carrier violated Rule 19 (Promotion) when they disqualified the Claimant. It argued that the Claimant was not given sufficient training and time to learn a new position and should have been allowed up to 30 days to become fully qualified
It concluded by requesting that the disqualification be set aside and the claim sustained as presented.
It is the position of the Carrier the Claimant was given equal and fair instruction and training in the same manner as other employees. It argued that nothing in the Rule or the Agreement requires the Carrier to keep an employee in a position when they repeatedly demonstrate that they cannot perform work safely or efficiently. It asserted that the Claimant continued to work in an unsafe manner after being coached several times. According to the Carrier Claimant demonstrated to his Manager J. F. Hendricks, and his Engineering Supervisor, D. M. Scaley, that he could not perform his work in a safe manner and because a BUC Undercutter is an expensive and critical piece of equipment and is dangerous to operate it was imperative to disqualify the Claimant. It closed by asking that the claim remain denied.
The question at issue in this case is did the Organization prove arbitrariness on the part of the Carrier when it disqualified the Claimant. The Carrier offered a statement from Manager J. F. Hendricks in support of its disqualification of the Claimant which stated in pertinent part the following:
In its submission the Organization countered the Carrier's argument by asserting that the aforementioned exhibit was nothing more than supposition and secondhand information that should not be relied upon because Manager Hendricks was not present to witness or observe the Claimant while he attempted to learn and train on his newly assigned undercutter machine. It argued that is evident because a review of the record indicates that Engineering Supervisor D. Sealy was the only Carrier Officer that had firsthand knowledge of the Claimant's attempt to qualify. The Carrier rebutted that argument before the Board arguing that the Organization's argument was not admissible because it was not made on the property during the handling of the claim. Review of the record indicates that the Carrier was correct that argument was not made P.L.B. No. 6402
on the property, therefore, it is de novo and will not be considered in the resolution of the dispute.
The record indicates that Engineering Supervisor D. Sealy issued the disqualification letter of the Claimant on April 7, 2011, for the following reason:
Subsequently, Manager Hendrick offered his statement, quoted above, that reiterated Sealy's disqualification of the Claimant for allegedly working unsafely.
When the Organization appealed the Carrier's denial of the claim it asserted that the training that was provided to the Claimant while he was assigned to his new undercutter position on System Gang 9394 was inadequate and the Claimant should have been afforded additional time and sufficient training to qualify. Attached to that appeal was a written statement from the Claimant that refuted Sealy's and Hendrick's statements. The Claimant asserted that he did not receive any instruction or training from his superiors or fellow gang members in regard to the functional operation on his newly assigned position. He wrote in part:
The Claimant's statement was never rebutted. It is apparent from the record that the Claimant may not have operated his undercutter in the safest and most efficient manner at all times because he was not provided proper instruction and training by co-workers that might of had an underlying reason not to assist in his qualification. The Organization as the moving party had the responsibility to affirm its position and it has established that the Carrier did not give the Claimant fair and equal instruction and training. After careful consideration the Board has determined that the Carrier erred in its disqualification of the Claimant.
Having found that the disqualification was in error the Board turns to the remedy. While the claim was being handled on the property the Carrier raised the argument that the Claimant voluntarily bid a new position on May 13, 2011, after immediately displacing following his disqualification on April 7, 2011, thus, the continuing claim had an ending date of May 13, 2011. That argument was not refuted, therefore, the Board finds and holds that the Claimant shall be compensated as requested in part 2 of the claim from April 7 through and including May 13, 2011.
P.L.B. No. 6402
