Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28237
THIRD DIVISION Docket No. MW-27126
90-3-86-3-180
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(St. Louis Southwestern Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed to recall
Water Service Repairman M. J. Smith to service on February 11, 1985 (System
File MW-85-16-CB/53-813).
(2) Because of the aforesaid violation, Water Service Repairman
M. J. Smith shall be allowed one hundred twenty (120) hours of pay at the
water service repairman's straight time rate for the period February 11, 1985
through March 1, 1985."
FINDINGS:
The Third 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
it
dispute are respectively carrier and employes within the meaning of thr
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over
dispute involved herein.
Parties to said dispute waived right of appearance at he
On May 3, 1983, a new position of Water Service Repair
established. As a prerequisite for the position, an individual w_
to be able to read piping and construction prints and diagrams, and ncertified to properly perform w
standard ASME codes.
The position was advertised in Bulletin No. 2 on February 7, 1985.
However, it was necessary to fill the position on a temporary basis until the
successful bidder was determined and could be assigned. The senior furloughed
Water Service Repairman was the Claimant, who has a seniority date of July 16,
1979. The next most senior furloughed Water Service Repairman was M. L.
Kimmel, with a seniority date of July 29, 1979. Kimmel was a certified welder
and had also been assigned previously to a position of Water Service Repairman/
Welder. Based on the Carrier's determination that Kimmel was the senior qualified furloughed employe
Form 1 Award
No.
28237
Page 2 Docket
No.
MW-27126
90-3-86-3-180
Claimant contacted the Carrier and stated that he felt he should have
been recalled to this position. According to the Carrier, Claimant was offered the opportunity to ta
not a qualified welder.
The Organization disputes Carrier's version of the events at issue.
In a letter received by the Organization on February 22, 1985, Claimant indicated that on February 1
who informed him that if he could satisfactorily pass the welding certification test required by the
February 17, 1985), he would be allowed to fill the position. Claimant reported to the office on Feb
provided any pipe, the welding rods were wet, and the battery had been removed
from the welding machine. On February 14, 1985, Claimant maintains that he
contacted the office but was advised that Supervisor Giacona was out of town
and would not return until Friday, February 15, 1985, the last day Claimant
could qualify for the position. According to the Claimant, his supervisor
did not want to give him a chance to qualify as a welder because Supervisor
Giacona was friendly with employee Kimmel and wanted to see him get the new
job instead.
Claimant's statement was presented to the Carrier on February 14,
1986, nearly one year after the events at issue occurred.
The Organization contends that the evidence adduced on the property
shows that Carrier refused to allow Claimant to take the requisite welding
test, thereby preventing him from filling the position in question. In the
Organization's view, Carrier's refusal to recall the Claimant on February 11,
1985, and its refusal to permit him to fill the position in question in
preference to a junior employe was unquestionably in violation of the Agreement.
Carrier argues that M. L. Kimmel was properly recalled and assigned
to the temporary position of Water Service Repairman/Welder on February 11,
1986. Mr. Kimmel was the senior qualified furloughed employee, Carrier asserts. The position of Wate
requirements of the position. Since Claimant was not a certified welder,
Carrier maintains that he failed to meet these requirements.
Moreover, Carrier submits that Claimant was offered the opportunity
to take a test in order to demonstrate his welding ability, but he declined to
do so. As it is unrefuted that Claimant was not a qualified welder and that
M. L. Kimmel was qualified, Carrier contends that Mr. Kimmel was properly
assigned under the provisions of the current Agreement.
The Board, in its review of the evidence and arguments presented by
the parties, agrees at the outset with the Carrier that there are many Awards
of this Division holding that judgment as to fitness and ability is the Carrier's prerogative, and t
Organization, the burden falls on the Petitioner to establish, by competent
evidence, proof of his fitness and ability. (Third Division Awards 21507,
21615, 20787, 21446).
Form 1 Award No. 28237
Page 3 Docket No. MW-27126
90-3-86-3-180
However, the question posed in the instant case is not whether the
Claimant was qualified to hold the position or whether the Carrier had the
right to make such a determination. The issue here is whether Claimant was
improperly denied the opportunity to demonstrate his welding skill. Under the
Agreement signed by the parties on May 3, 1983, Carrier agreed that when the
new position of Water Service Repairman/Welder was bulletined, ". . . repairmen will be allowed the
take certification test as Carrier may require."
In the instant case, the Organization had the burden to establish, as
a prima facie matter, that Claimant attempted to demonstrate his welding skill
but was prevented from doing so. We find that it has not satisfied its evidentiary burden here. Cruc
the Claimant's own statement refutes his contention that he was denied the
opportunity to qualify for the position. In the postscript to his February
22, 1985 letter, Claimant states:
"About 1:45 P.M., today, Feb. 15, Mr. Giacona
told me he got the 2" Sch 80 Blk. pipe. It's a
little late for that, right?"
Although no explanation was ever forthcoming from the Claimant or the
Organization as to why Claimant thought it was a "little late" to demonstrate
his welding skills when the bid remained opened for two more days, Claimant's
statement indicates that he was given an opportunity to take the welding test.
Therefore, we disagree with the Organization's contention that the Carrier
failed to abide by the Agreement or that the evidence shows any explicit or
implicit refusal on the part of the Carrier to enable Claimant to qualify for
the position.
Having found that the Organization failed to make a prima facie case
that Claimant was denied the opportunity to qualify for the position, we find
no basis upon which to disturb the Carrier's decision that Mr. Kimmel was the
senior experienced furloughed employee qualified for the position of Water
Service Repairman/Welder. Accordingly, we rule to deny the Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest
Nancy J er - Executive Secretary
Dated at Chicago, Illinois, this 11th day of January 1990.