Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 12012
SECOND DIVISION Docket No. 11850
91-2-89-2-147
The Second Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood Railway Carmen/ Division of TCU
PARTIES TO DISPUTE:
(CSX Transportation, Inc.
STATEMENT OF CLAIM:
1. That the Baltimore and Ohio Railroad Company violated the controlling agreement, specifically Rule 33, when they abolished the position of
crane operator and dealt the Claimant, Mr. Gross, future monetary losses from
future derailments.
2. That accordingly, the claimant, Mr. Gross, be paid any future loss
of wages and that Mr. Gross be reinstated as the crane operator.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing
thereon.
Claimant was awarded the position advertised by Bulletin No. 25, of
Qualified Crane Operator by Notice dated September 11, 1987. Carrier later
abolished said position, rebulletined, and assigned the same position to
another Cayman. The Organization argues that the Carrier violated Agreement
Rule 33, when it abolished Claimant's position.
The Carrier states that Claimant held the position as a trainee and
was not found to be qualified. This Board has consistently held that determinations of fitness and ability are vested with the Carrier. Once the Carrier makes its determination, the burden of proof shifts to the Claimant to
document by substantial probative evidence the Carrier's error. Nowhere in
this record do we find any demonstration that Carrier's determination was
wrong or any evidence that Claimant was clearly qualified to perform the
duties of a crane operator. The Organization has failed to meet its burden of
proof that Carrier's actions lacked a proper basis.
Form 1 Award No. 12012
Page 2 Docket No. 11850
91-2-89-2-147
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
__ _
Nancy -! ver - Executive Secretary
Dated at Chicago, Illinois, this 20th day of February 1991.