Fourth Division Award No. 2164 (Seidenberg) 

"The principal thrust of the Organization's case is that, under the existing agreement, the Carrier may not unilaterally terminate the Claimant's seniority as Yardmaster without affording him a hearing as provided for in Rule 11(a). The Organization denies that Rule 8(d) operates as to automatically deprive the Claimant of his contractual rights. It points out that there were various factual aspects of the controversy which could have been properly resolved by a fair investigative hearing. It also notes that the suspension provision of Rule 11(a) would have adequately protected any Carrier rights regarding taking immediate action against the Claimant, if the Carrier was convinced that such immediate action was necessary.

"The Carrier, on the other hand, denies that it `disciplined' the Claimant and therefore it was not necessary for it to invoke the provisions of Rule 11(a). On the contrary it maintains that it complied with the specific provisions of Rule 8(d) which were directly in point with the specific issue. The Carrier further states that Rule 8(d) is a specific rule that takes precedence over Rule 11, a general discipline provision, assuming that the latter rule had any relevance at all. The Carrier argues that there is a difference in these two rules to the extent that Rule 8(d) by its terms takes effect immediately while the discipline rule requires a five day advance notice of the scheduled hearing.

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"The Board finds, upon review of the evidence, that the Carrier's contention is ill founded that the deprivation of a yardmaster's seniority is not a disciplinary sanction, and therefore not entitled to the procedural protection encompassed within Rule 11(a). It is difficult to envisage a more severe disciplinary action that the Carrier could take against any employe in this Industry, short of outright dismissal, than to deny an employe the right to exercise his contractually awarded seniority.

"It is not disputed by either side to this dispute that seniority is a right granted by the collective bargaining agreement governing the employment relationship; it is also not disputed that this contractually awarded seniority may be terminated for just cause by the employer. But since it is a contract right, and not given as an act of grace on the part of the Carrier, it can only be taken away in accordance with the procedural standards encompassed within the concept of due process -both adjectivally and substantively. The Carrier could, in the instant case, terminate the Claimant's yardmaster seniority for just cause, even without the warrant of Rule 8(d). All that this rule does is explicate and concretize the Carrier's existing right as well as set forth the kind of employe misconduct which may result in his forfeiting his seniority rights. But there is nothing in Rule 8(d) which grants the Carrier the unilateral right to determine the controverted fact as to whether the employe in question has indeed forfeited his contractually awarded seniority. The determination of controverted facts affecting all aspects of the employment relationship, including seniority rights, must be resolved in accordance with the provisions of Rule 11(a) rather than Rule 8(d). This latter rule is not self operative. It does not bestow upon the Carrier the sole and exclusive right to determine finally, and without effective challenge, the controverted issue of whether the Claimant did, without just and sufficient cause, refuse to execute an appropriate work assignment.

"It may well be that the Carrier's attempted disciplinary action was merited by the particular facts of the case, but this must be determined, not exclusively and solely by the Carrier, but rather in a proceeding that conforms to the procedural standards laid down by Rule 11(a). For the Board to find otherwise would be to hold that the Claimant's contractual rights are illusory rather than real. Since the record is clear that the Carrier did not comply with these aforementioned standards, its unilateral action terminating the Claimant's seniority rights as yardmaster must fall." (Emphasis ours)

Fourth Division Award No. 2634 (Weston)

"Claimant a yardmaster with substantial seniority in that class was disqualified as yardmaster by Terminal Superintendent Fraser on grounds that he did not protect a carload of meat, failed to correct conductor's non-compliance with clean car requirements, neglected to supervise crews adequately and betrayed a `lackadaisical attitude.'

"Rule 14 of the Yardmasters' Agreement provides that `No yardmaster shall be disciplined or dismissed without a formal investigation....' Carrier contends that Claimant was not `dismissed' and that the discipline rule is inapplicable. We disagree.

"To disqualify an employe as yardmaster and adversely affect his seniority in that classification is, without any question, the equivalent of dismissal as yardmaster. The fact that he might or might not be able to assert seniority in a lower rated position is not pertinent for he has been effectively removed from the yardmaster ranks.

"Moreover, the derelictions with which Claimant is charged must be established by just as clear and competent proof as is required in any discipline case. If the contrary were true, inefficiency could be used as a relatively simple vehicle for termination of employes. It is entirely clear that an investigation under Rule 14 is required in the present case." (Emphasis ours)

Fourth Division Award No. 4152 (Scearce)

"The Organization contends the Carrier's action was disciplinary in nature, that such action was taken without benefit of a specific charge or formal hearing and that the Carrier is thus liable for the Claim as stated. It points to Article 5(a) of the Agreement which it contends establishes a `probationary period' of 60 days in the Yardmaster position and 30 days cumulative service in that capacity during which the Carrier can unilaterally discontinue a prospective Yardmaster's service; inaction by the Carrier, per the Organization, constitutes approval and establishment of seniority for such candidates.

"For the Carrier's part, it contends that it has the reserved right to establish qualifications for a position, to determine if an incumbent is meeting such qualification and, if not, to remove such person. This, the Carrier asserts, does not constitute discipline and is not covered by such provisions of the Agreement but is, instead, a proper exercise of the prerogative of management and only where such action is shown to be an arbitrary, capricious or flagrant abuse of discretion is its decision disturbed.

"The Organization has cited several Awards including those on this Division (2659, 2915, 3158) where disqualifications were identified as discipline cases and disposed of by Board by applying that rationale. The distinction that may be drawn between such cases and this one is that the Claimants therein apparently were disqualified for specific instances or circumstances. Here, the Claimant was apparently not apprised as to what his offenses or shortcomings were. The Carrier expresses in detail the areas of its dissatisfaction with the Claimant in its submission to this Board, no such advise was afforded the Claimant. Whether or not the parties choose to disagree on whether such action is disciplinary or not, it is clear to this Board that it was arbitrary and capricious and denied the Claimant his right to protect his seniority in the classification." (Emphasis ours)

Public Law Board No. 6584, Awd. 6, Case 6 (Suntrup) (UTU/Soo Line)

"There is evidence, that on the date of the incident under scrutiny in this case, the Claimant dealt with neither in a manner appropriate for a yardmaster. Lastly, the Carrier observes in the record that this is not the first incident involving safety for this Claimant. Prior to the decision to disqualify him as a yardmaster he had been cited a number of times for problems with job performance."

Public Law Board No. 3337, Awd. 7, Case 7 (Sickles) (RYA/Consolidated Rail)

"There are certain instructions at the yard in question which the Employee has conceded he was aware of dealing with communications in the normal course of employment. The evidence of record convinces us that this Employee did not fully comply with the instructions and that there was, in fact, certain culpability on his part. We question however that a total disqualification from all subsequent service is appropriate in this particular case especially since there is nothing of record to indicate this Employee has been previously guilty of these types of inattention to duty."