STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: At the close of the work period on February 8, 1957, the Claimant who was regularly assigned to Extra Gang No. 9 as an extra gang laborer was laid off, while Extra Gang Laborer James Greer was retained in service as an extra gang laborer in that same gang.
The Claimant holds seniority as a section and extra gang laborer as of May 1, 1951, while Mr. James Greer holds seniority as a section and extra gang laborer as of October 21, 1962.
As of February 8, 1957, there was no classification of Truck Driver, Chauffeur, or Laborer-Truck Driver encompassed within the scope of the subject agreement, nor any requirement that section and extra gang laborers must be qualified to operate highway trucks as a condition to the recognition of their seniority rights as section and extra gang laborers.
The Carrier's action in laying the Claimant off while retaining a junior employe in service on February 11, 12, 13, 14, and 15, 1957, was protested
For failure to so qualify himself, Fox is responsible for this loss of work and the claim should be denied.
The Carrier further shows Fox cannot, because of his failure to act as required by the agreement, legitimately claim loss.
Only the employe may exercise the seniority he possesses. The placing of men by the Carrier before receipt of expression from the employe where the employe desires to exercise his seniority is incompatible with any thought the employe exercises seniority.
And so it was Fox's responsibility if he desired to work after cut off as laborer on Gang No. 9, to exercise that seniority. This he did not do when notified he was cut off Gang 9, February 8, 1957. It was Fox's further responsibility, if he wished laborer's job driving truck, to qualify as track driver.
As heretofore shown, Fox's failure to qualify himself for the position he sought was responsible for his loss of time and no sum is due him, and the Carriers respectfully request the claim be denied.
All data submitted in support of the Carriers' position have been heretofore submitted to the employes or their duly accredited representatives.
The Carriers request ample time and opportunity to reply to any and all allegations contained in Employes' and Organization's submission and pleadings.
Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.
For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim and grant said Railroad Companies, and each of them, such other relief to which they may be entitled.
OPINION OF BOARD: This is a dispute between The Brotherhood of Maintenance of Way Employes and The Missouri-Kansas-Texas Railroad Company and The Missouri-Kansas-Texas Railroad Company of Texas.
On February 11, 12, 13, 14, and 15, 1957 the position of section and extra gang laborer was filled by an extra gang laborer who was junior in seniority to the Claimant. The position included the duties of driving a truck. At the time there was no classification of laborer truck driver. The duties of the position were not changed. The Claimant was not qualified to fill the position.