Brotherhood of Maintenance of War Employes ) Division - IBT Rail C:onfcrence )
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t\nd )
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Norfolk Southern Railway Company )
(Former Southern Railwnr Company) )
Cnse No. 253
:\wnr<l No. 253
- IWl'EME 'r <W C1l ..\ lM:
Richnrd K Hnnft, Chairmnn and Neutral Member
D. M. Pascnrella, Employee Member
L. Kerby, Carrier Member
"Claim of the System Committee of the Brotherhc>Cl<l that:
·111e Carrier's <liscipline j<lisqunlification as a tmnpl·r operntor and prohibition from working on a tamper operntor position for six (6) months beginning on December 10, 2014 and cnd.ing on.June 10, 20151 of Mr. D. l;ra:t.ier, issuell by letter dnted Dl-cl-mber 9, 2014, in connl'Ction with allch>cd failure to follow the instnictions of his instructor while lenrning to opemtc the tamper :uul his failure to properly set up the tamper machine as well on November 3 and 4, 20 l 4 was unjust, improper and on the hasis of unproven allegations (Carrier's Hie M\XI-GNVL-14-23-LM-732 S<) Ll).
') As a consequence of the violation referred tn in Part 1 abo,·c, (:Jaimant D. Frazier shall be ma<le whole an<l exonerated of all charhtcs an<l his records cleared.
l.,INl )IN<;s:
Special Board of ,\djustment 1049, upon the whole record an<l all of the evidence, finds an<l hol<ls that Employee an<l Carrier nre employee and carrier within the meaning of the Railway l.abor t\ct, as amended; and, that the Board has jurisdiction m·er the dispute herein; and, that the parties to the dispute were given due notice of the hearing thereon an<l <lid participate therein.
'l l1is ,\ war<l is based on the facts and circumstances of this particular case and shall not :;c1.Ye as a prece<lent in any other a 1se :;.
Special Board of Adjustment No. 1049
1\ward No. 253
After thoroughly r<:viewing and considering tlw record and the parties' presentations, the Boan.I finds that the.· claim should be disposed of as follows:
Claimant in this dispute c.·ntered the C:urier's ser\'icc on April 12, 2004 as a Trnck J .aborer. In April, 2009, Claimant attllincd Machine Operator's Seniority by opc.·rnting both a Spike Puller :md ;\uto-Spiking machine on n (iauging Gang. Claimant bid on, and wi1s allowe<l hy supervision to fill, pcmling lJUalification, a vacant tamper operator position on Smoothing C1ang SM-555 beginning on July 7, 2014.
Claimant was summoned to im Jnvestif.,ration four (4) months Inter on November 20, 2014 :1llcJ..,rinR that he foik·d to follow the instructions of his instructor and failed to properly set up the tamper machine :is well on November .1n1 nn<l 4'1\ 2014.
At the JnvestiJ..,ration, the charging officer who was the Tr:1ck Supc.•rvisor that Claimant worked un<ler rclatnl thnt Claimant nec<le<l assistance on every <lay from .July. when he hie.I into the job, until November, when Claimnnt was chnrgc.·d. ·t11e Track Supen•isor testified that he pen,onally roe.le on the tnmper on November 3"1 anc.l observed Claimant's pcrfonnancc.· nnd concluded from what he obsen•ec.l that Claimnnt was not competent enouRh to run the machine. Moreover, Cl:1imnnt's foreman, who c.lirectl)' supervised Claimant testified at the lm•estigation that Claimant wns not lJllalific<l to run the machi1w.
Further, when l)Uc.·stioned at the.· Jnnstigation, Claimant answernl the lJUcstion: "Did you 1wed l\lr. l\lurphy (Claimant's Instructor on November .11''and 41h ) there?" with "Yes, I nec.•ded him there because we were denling with stations an<l it was like Chinese."
'l'he ( )rganization, howc.•vc.·r, nrgucs that there is no doubt that Clnimant was properly l)Ualifiecl as a tamper opc.·mtor under the.· AJ.,rtcemenr as he had not bc.·en disqualified as a tnmper opl'rator within sixty (611) cnlc.:nc.!ar c.lays per Rule 2(d).
Ruic 2(d) states, in relevant part, that an c:mploree promotcc.l from a lower rank to a higher rank in the same sub-<lepartment may be gi\"en a maximum of sixty (60) calendar days in which to qualify aftL·t bdng assigtwc.1 br bulletin. In the event the employee foils to show sufficient aptitude, however, he may be disl)ualificd at any time during sni<l sixty ((10) day period ... If not di.-.l)ualifie<l within a sixty (60) calendar day pc.•riod, the c.·mployee shall be considered as c.1ualified.
The < >i-ganization maintains that since the Carrier failed to timdy <lisl)ualify Claimant he is a July c.iualificd tamper operator and cannot now be disl)ualified.
Claimant's foreman testified at the investigntion that the Carrier allowed Claimant to remain in the.· position in hopc.·s of continued improvemc.·nts that failed to materialize.
Special Hoard of Adjustmcmt No. I 049
Award No. 25.'
The Uoard finds, based on th<.· record before.· us that Claimant was not intentionally negligent, but rather, lacked the knowledge. experience and skills re'luircd to operate the tamper. There is certainly no shame: in tl'ying to 'lualify for a posit.ion and being unable to c.lo so. The record evidence demonstrntes that Claimant here was unable to meet the expectations for the duties of the lead tamper operator: during the period of November.'\ and 4, 21114. Claimant made numcmus errors aft<.·r several attempts to
teach him the proper methoc.l:1 to he uscd. 'll1c Carrier acted appropriately in removing hitn from a position that h<.· had failed to become competent in over a four (4) month trial.
Aware.I:
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J·t,e claim is deniec.l.
Richard K. Hantl. Chairman
D. M. Pascarella. Employee Member D. L. Kerby. Carrier Member
Dated at Chicago. Illinois. January 20. 2018