AWARD NO. 206
CASE NO. 293
SPECIAL BOARD OF ADJUSTMENT NO. 280
PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
TO )
DISPUTE ) ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
STATEMENT OF CLAIM:
"1. Carrier violated the effective Agreement
when Track Foreman L. D. Myhand was unjustly
disqualified and was not allowed an
investigation.
2. Claimant Xyhand shall be paid for all time
lost commencing September 29, 1984 and continuing until such time as he is reinstated to
his position of Track Foreman, his personal
record be cleared of the disqualification
charge and his Track Foreman's seniority be
restored intact." (MW-84-47-CB-Myhand: 53768)
FINDINGS:
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 question at issue in this dispute concerns a determination as
to whether the Claimant, upon being notified by the carrier that
he was disqualified as a Track Foreman, was entitled to a hearing
on such matter pursuant to either Article 14, "Discipline and
Investigation," as the organization claims, or Article 48,
"Unjust Treatment," as the Carrier maintains.
The record shows that under date of October 4, 1984 Claimant was
advised by the Carrier that as a result of his having been absent
without authority on September 26, 1984 he was suspended from
service without pay for September 27 and 28, 1984. This letter
further notified Claimant that he was furloughed as the close of
business on September 28, 1984.
By a second letter dated October 4, 1984, Claimant was advised:
"Due to your inability to perform services as a Track Foreman as
required by the Carrier you are disqualified as Foreman effective
September 28, 1984. You may place yourself where your seniority
permits."
Claimant subsequently made request of the Carrier for a hearing
based on the suspension from service and on being disqualified as
a Track Foreman.
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CASE NO. 293
In responding to Claimant, the Carrier forwarded two separate
letters, each dated October 15, 1984. one letter advised a hearing based on the suspension assessed Claimant would be held on
October 24, 1984. The other letter, as related to Claimant's
disqualification as a Track Foreman read as follows:
"I am in receipt of your request for a hearing based on
being disqualified as Track Foreman
September 28,
1984.
It has been established that Management is the sole
judge of an employee's ability to qualify for promotion,
per Article 8 of the current agreement. Therefore, you
are not entitled to a hearing (investigation) under Article 14, as revised September 1, 1984. However, you do
have recourse under Article 48 established September 1,
1984, a copy of which is included with this letter.
Your request is respectfully denied."
Claimant did not thereafter request a conference as provided in
Article 48. Further, he failed to present himself for hearing on
October 24, 1984 as related to the two-day
suspension.
In the Board's
opinion,
absent any evidence of record refuting
the Carrier contention that it has been recognized as the sole
judge of an employee's ability to qualify for promotion, it must
be held that just as the carrier has the right to determine an
employee's fitness to be promoted it has the right, subject to
review of its determination in a conference under Article 48 and
such determination as may thereafter be made in pursuance of normal grievance appeal procedures, to be the judge of an employee's
ability to be continued in a foreman's position.
Accordingly, the Claimant not having availed himself of opportunity far a conference pursuant to Article 48, the Board has no
basis to hold that Carrier did not have proper cause to disqualify Claimant as a Track Foreman.
AWARD:
Claim denied.
Robert E. Peterson, Chairman
and Neutral Member
I
AiJ crn
R. O. N for M. A. Christie
Carrier tuber organization Member