PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when Mr. D. M. Vaught was used to operate 'Tm 140' on August 12, 13, 14, September 1, 2, 3, 4, 8, 9, 10, 11, 15, 16, 17, 21, 22 and October 1, 1981 instead of using Claimant R. G. Biswell who was available and qualified to perform such service (,,^vstem File B-1952/MWC 82-4-13).

 (2) Claimant R. G. Biswell shall be allowed the difference between what he should have earned as operator of 'TM 140' and what he did earn in a lower rated position on the claim dates."

 OPINION OF BOARD: By letter dated October 9, 1981 the Organization filed a
 pay claim on behalf of the Claimant, R. G. Biswell, on the
 grounds that the Carrier was in violation of the current Agreement when it used
 two (2) employes, junior in seniority to the Claimant, to operate a TM-140 tractor
 mowing machine in August, September and October of 1981 on the Fort Smith Subdivision.
 After the claim was denied it was appealed on property up to and including the
 highest Carrier Officer designated to hear such. It is now before the Third Division
 of the National Railroad Adjustment Board.

 As moving party in the instant dispute the burden of proof lies with the Organization (Second Division 5526; 6054; Third Division 8486; 9609; 16288). When the Carrier denied the claim it did so on the grounds that the Claimant never made a request of the Carrier, prior to the filing of the claim, to operate the machine in question, nor "did (the Claimant) express a desire to be afforded an opportunity to become qualified to operate" the TM-140 mowing machine. A search of the record fails to provide evidence of probative value to show this position of the Carrier to be incorrect. The Claimant may have assumed that he was qualified to operate the TM-140 since he was qualified as a trackman driver. There is nothing in the record to support, however, this assumption. On the contrary, the Carrier was within its rights when it assigned the employes it did to operate the TM-140 since the Carrier, and not the Claimant, is the appropriate judge of qualifications of Carrier employes barring any restrictions to the contrary in the current Agreement (Third Division 12994; 21697). And none have been herein found by the Board in the record evidence before it. The claim must, therefore, be denied.



                      Docket Number MW-25004


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


ATTEST:
        Nancy J. Dper - Executive Secretary


Dated at Chicago, Illinois, this 23rd day of October, 1984.