SPECIAL BOARD OF ADJUSTMENTS
NO. 1139
BRS File No.: 12877-LI
Parties to
Dispute: BROTHERHOOD OF RAILROAD SIGNALMEN
and
LONG ISLAND RAILROAD (LI)
Statement of
Claim: Claim on behalf of M.A. Graf, for immediate reinstatement with all
back pay and any overtime that a junior cable splicer may have
incurred since his termination, and a provision that any further re
qualification of the Claimant be based on a modified format
specific to the position that he would be working, account Carrier
violated the current Signalmen's Agreement, particularly Rule 47,
when Carrier terminated the Claimant's employment without
benefit of a fair and impartial trial; Carrier also violated Rules 29
and 30, when it terminated the Claimant's employment without
allowing him to complete his Assistant Signalmen training
program.
BACKGROUND FACTS
Claimant M. A. Graf, by letter of September 10, 2003, was advised by the Carrier that
his employment with the Carrier would be terminated effective the end of tour, September 11,
2003, because of Claimant's inability to perform satisfactorily as a Mechanic on two practical
exams given to Claimant. The Organization appealed the dismissal directly to the Carrier's
Labor Relations Department's highest designated officer, which appeal was denied under letter
of December 5, 2003. The matter now stands before this Board for adjudication.
According to the Organization, Claimant's dismissal from service amounts to a violation
of Rules 29, 30, and 47 of the Parties' Controlling Agreement. According to the Organization,
the Carrier violated Rule 47 and the language therein that mandates that employees are not to "be
disciplined or dismissed without a fair and impartial trial." As to a violation of Rules 29 and 30,
the Organization focuses on the language therein calling for "an assistant signalman to be
promoted to the position of mechanic" at "the expiration of the eight basic training periods of
130 each, overtime excluded" (Rule 30 [a]) and the language that "[a]n assistant signalman may
be promoted to a position of mechanic before the expiration of the eight-basic training periods
of 130 days each ... if such a position is available and if, in the opinion of Management, he is
qualified therefor." (Rule 29 [a][2]).
The Organization notes that Claimant, under Rule 29 (a)(2), was promoted to the
Mechanic position from the Assistant Signalman position before he completed his eight basic
training period of 130 days each. The Organization then focuses on the language of Rule 29
(a)(2) that provides that "[a]n assistant signalman so promoted [before completing the eight basic
training periods] who fails to meet the requirements of the position shall be returned to the
assistant signalman class to complete his basic training." According to the Organization, the
Carrier had the duty to return Claimant to the Assistant Signalman position to allow him to
complete the eight basic training periods of 130 each rather than subject him to a dismissal. In
setting forth its position, the Organization quarrels with the manner in which Claimant was tested
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S.B.A. No. 1139
Case No. 14
before being dismissed. Hence, the Organization maintains that Claimant should be returned to
work with all back pay and other lost benefits, with the further provision that any further
qualification testing of Claimant be predicated on a format that would be specific to the
Mechanic position that Claimant would be occupying.
According to the Carrier, no contractual violation has been established by the
Organization. The Carrier rejects the Organization's reliance on Rule 47, stating that the instant
matter does not concern the imposition of discipline, which would render Rule 47 inapplicable.
The Carrier claims that its testing of Claimant was permitted under Rule 56 (d) which allows the
Carrier, "in the event of a reasonable doubt as to his [employee's] qualifications, ... to
demonstrate his ability by a reasonable and practical test." Further, the Carrier asserts that its
testing of Claimant occurred in front of an Organization representative and that there is no basis
in the record to conclude that the testing, which Claimant failed, and the attendant
disqualification of Claimant was in any way arbitrary or capricious.
The Carrier rejects the Organization's reliance on Rules 29 and 30. Focusing on Rule 29
(a)(2), the Carrier asserts that the language therein allowing the return of an employee promoted
to the Mechanic position before completion of the eight basic training periods to the position of
Assistant Signalman did not contemplate that an individual such as Claimant, who was promoted
to Mechanic eight years earlier, would be returned to the position of Assistant Signalman. Thus,
the Carrier claims that the claim has not been sustained.
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S.B.A. No. 1139
Case No. 14
Award No. 14
OPINION OF THE BOARD
Initially, the Board would state its finding that Rule 47 cannot be considered applicable
to the instant claim, since Claimant's separation of service was not due to a disciplinary decision
reached by the Carrier. It is noted that arbitral support has been advanced by the Carrier in
support of its position under Rule 47, and the Carrier's position is consistent with the language
of the Rule, which is entitled "Discipline." Further, the Board finds that the Carrier properly
applied Rule 56 (d) when it subjected Claimant to practical testing upon his return to work after
an extended absence. In fact, the Board notes that the Organization has not disputed the
Carrier's right to test Claimant. Insofar as the Organization has claimed that the testing was not
specific enough, the Board finds that the Carrier had the right to require Claimant to undertake
testing for the Mechanic position without any obligation on the Carrier's part to focus the testing
on less strenuous parts of the Mechanic position.
Hence, the crux of the instant dispute between the Parties turns on the language of Rule
29 (a)(2) that calls for the return of a Mechanic to the Assistant Signalman position if the
Mechanic was promoted to the Mechanic's position before completing the eight basic training
periods of 130 eight-hour days of service. It is axiomatic that contractual language is to be given
a reasonable interpretation so as to effectuate the parties' intent. In the instant case, a reading
of Rule 29 (a)(2) allows the Board to conclude that a reasonable interpretation is that the ability
S.B.A. No. 1139
Case No. 14
Award No. 14
of a Mechanic to be returned to the Assistant Signalman position to complete the eight basic
training period is contingent upon the Mechanic not being able to fulfill the requirements of the
Mechanic position in that period immediately following the promotion. The Board finds that it
would be unreasonable to accept the Organization's proffered interpretation that the Rule should
apply to an individual like Claimant who had been promoted eight years prior to being
disqualified for the position.
Accordingly, the Board finds no basis upon which to sustain the claim.
AWARD
The claim of the Organization is denied.
DATE:
THOMAS . ALDO, ESQ., NEUZ
TRAL M ER
TEVEN M. DRAYZEN CHARL E A. McGRAW
CARRIER MEMBER EMP,,~LY!EEMEMBER
U
Organization's Dissenting Opinion
SBA 1139 Award No. 14
Referee: Thomas N. Rinaldo, Esq.
The Organization firmly believes that the findings of aforementioned Award are beyond
the point of absurdity and should be reviewed only as an example of an assailable
injustice.
The facts of record indicate that the Claimant's career began in 1993. He became
qualified and was promoted to a position of Mechanic Communications Cable Splicer in
the Communication's Department and worked in that capacity for nearly nine years. The
Claimant suffered an on-the-job injury and subsequently underwent two separate back
operations. Upon his return to work the Carrier placed him on restricted duty and
reclassified him as Assistant Signalman.
The Claimant, along with the Carrier, were both anxious for the Claimant to resume his
duties as a Communications Cable Splicer. Carrier then subjected the Claimant to a
practical test designed for Signal Linemen, this involved climbing utility poles, installing
messenger cable, drilling holes with a brace and bit, manually hauling up and installing
cross-arms and other linesman duties. The record indicates that during the first test the
Claimant failed to complete the assignment and the Carrier returned him to his former
Assistant Signalman's position. He was again tested 26 days later, and according to
comments made by the supervisor and a Union Representative who were present during
this second test,
"they were very impressed with the effort by the Claimant and felt that
with a hit more practice he would be able to pass. " The
only exception taken by the
supervisor was that the Claimant took too long in completing the second test. As noted or
more importantly, not noted, is which part of the test the Carrier determined that he
supposedly failed. Notwithstanding, the Organization argued that the Carrier failed to
allow sufficient time for the Claimant to properly prepare for the test and that he had
never been required to perform this type of work in the past.
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On September 10, 2003, Carrier notified the Claimant that his employment with the Long
Island Railroad was terminated; and he was, therefore, dismissed from service.
The Organization further challenged the termination of Claimant and contended without
rebuttal, that Communication Cable Splicers are not required to perform the kind of
physical exertion as Signal Linemen and that the Claimant should have been given a
modified test only in the areas that would pertain to the position of a Cable Splicer. It was
noted and uncontested that the position of Cable Splicer typically performed their work
from a bucket truck or ladders.
The Organization challenged Carrier's actions on the basis that Agreement Rule 47
clearly requires that the Claimant was entitled to a fair and impartial hearing before he
was terminated.
"RULE 47
Discipline
(a) Employees who have
completed their probationary period of employment
shall not be disciplined or
dismissed
without a fair and impartial trial..."
(emphasis added)
The Carrier argued that disqualification is not considered discipline and therefore the
Claimant was not entitled to a fair and impartial trial. On the other hand, the Organization
was not provided the opportunity to challenge the validity of the testing procedures
because no Investigation was ever conducted. During the Arbitration Hearing the
Claimant stated that he was required to spend nearly four (4) hours on the pole.
(On a
personal note as a Signalman 1 personally have spent considerable time performing pole
line work- to subject anyone to spend four (4) hours on a pole without relief is not only
unconscionable, but heartless.)
In its Submission to the Board, the Carrier cited numerous Third Division Awards, i.e.,
35991, 31119, 21243, 20361, 19129, 15494, 6143 and 4687. Upon review, they all deal
with an employee attempting and failing to obtain a promotion to a higher rated position.
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In each case, the employees returned to their former held positions. The common thread
in each of the above-cited Awards: there was not one single instance when an employee
was disqualified and then terminated.
Carrier also cited Third Division Award 28433 involving the same parties to this dispute.
As noted, the Referee clearly stated that while the Claimant was demoted and
subsequently furloughed, he was not considered dismissed. The Referee held, in pertinent
part:
"Claimant was advised that effective April 25, 1986, he was removed from
the Assistant Signalman Training Program and was to exercise his rights
according to Rule 29 a (1). Claimant was subsequently furloughed from
service since he did not have sufficient seniority as a Signal Helper..."
"...The Organization contends that Carrier violated Rule 47 when it
dismissed Claimant without granting him an investigation. Rule 47 provides
in relevant part:
`Employees who have completed their probationary period shall not
be disciplined or dismissed without a fair and impartial trial.'
The facts established below clearly show that Claimant was not being
"dismissed or disciplined" when Carrier removed him from the Assistant
Signalman Training Program. Claimant was returned to the Signal Helper
position because Carrier had determined based on tests that he could not
satisfactorily complete this program. No disciplinary motive was shown to
underlie this action. Moreover, Claimant was not dismissed. Once returned
to the Signal Helper position, Claimant did not have enough seniority to
maintain that position, all others on the job were more senior than he and he
could not, therefore, rightfully bump them, and there were otherwise no
vacant positions. Had Claimant held sufficient seniority as a Signal Helper,
he would have remained employed and would not have been furloughed."
(Emphasis added)
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Based on the foregoing Third Division Award 28433, the Claimant should have been
allowed to continue on the Assistant Signalman's position, the position that he was
holding at the time of the first and second tests. The fact is that his position was never
abolished and/or filled by a senior employee, and still therefore, existed at the time of his
termination. The fact is, the Claimant should have had the opportunity to remain in the
position he had held at the time of the first test.
The Agreement unequivocally states that an employee cannot be dismissed without a fair
and impartial trial. The fact is that the Claimant in this instant case was dismissed without
a trial.
The Majority in this case has offered no reason or rationale for determining that dismissal
without a trial is in compliance with the Agreement. While the Question proffered by the
Organization before the Board clearly stated that Rule 47 was violated, the Referee failed
to ever address that question.
The Majority stated in its Findings that "It is axiomatic that contractual language is to
given a reasonable interpretation so as to effectuate the parties' intent." While the
Referee makes reference to this time-honored interpretation, he failed to apply it in this
instant case. Obviously, the Referee took the bait, hook-line-and sinker, and swallowed
Carrier's misguided argument that disqualification is not considered discipline. The
problem with this simplistic view is that the Agreement additionally states that an
employee will not be dismissed without a fair and impartial trial. One can only presume
that despite the Referee's quotation, his ability to make reasonable interpretations is
highly suspect.
The Referee in this case went beyond the bounds of reasonableness and totally ignored
the basic principle of "Due Process Rights." This can only be considered as ignorance
and inconsiderateness to historic findings of numerous boards of arbitration. It is obvious
that the Referee fashioned an award that defies this time-honored principle. Based on the
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foregoing, it is the Organization's position that Carrier failed to provide a fair and
impartial hearing, and therefore, it did not have the unfettered right to dismiss the
Claimant.
This Award should only be viewed as a pinnacle of injustice. The Referee had the
opportunity to uphold the clear language of the Agreement that an employee cannot be
DISMISSED without Due Process, and to uphold the sound principle that the Carrier has
the burden to prove their actions were somehow justified. By failing to hold a fair and
impartial trial, the Organization was denied its right and responsibility to present
evidence that Carrier's actions were arbitrary and capricious.
This is simply justice denied.
In conclusion, it is the Organization's position that the Referee and his findings should
suffer the same fate as the Claimant - they should be disqualified and dismissed.
Respectfully submitted,
",
A . I°V', c
C.A. McGraw, International Vice President, NRAB
Labor Member - PLB No. 1139
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