Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28476
THIRD DIVISION Docket No. MW-28456
90-3-88-3-256
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
(Missouri Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when, on December 5, 1986, it
failed and refused to allow Machine Operator S. R. Judd to displace a junior
machine operator on the Ballast Dress Cultivator machine assigned to Gang 5020
at Holden, Missouri (Carrier's File 870439).
(2) As a consequence of the aforesaid violation, Mr. S. R. Judd
shall be allowed:
'...
eight (8) hours per day, including any
overtime, and Holiday pay as a result of not
being allowed to displace in line with his
Seniority as a Machine Opertor (sic) as exibited (sic) on the Central District Roster.
This claim shall begin as of December 5, 1986,
and continue to the last day a District Operator junior to the Claiment (sic) was allowed
to work, January 16, 1986. *** "'
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 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.
The Claimant is a Machine Operator who was displaced from his position based on force reduction.
another Machine Operator's position, that of operating a Ballast Dress Cultivator. This displacement
Claimant was not "qualified."
Form 1 Award No. 28476
Page 2 Docket No. MW-28456
90-3-88-3-256
In its action, the Carrier finds support in Rule 2(g), which reads
in pertinent part as follows:
"(g) Foremen, mechanics, helpers, and employes of like rank in other departments who are
subject to the provisions of this agreement,
after having exhausted their rights in the class
in which employed, shall have the right to drop
back to the next lower classification in line
with their seniority in that classification.
To be entitled to drop back to the next lower
classification and retain seniority in the
higher classification the employe must have
exhausted displacement rights over junior employees in the higher classification if qualified for th
(an employe may not disqualify himself), otherwise if he exercises seniority in a lower classificati
This Rule, however, primarily concerns an employee seeking to displace to "drop back to the next
Claimant seeks to remain in the same classification. The second sentence of
Rule 2(g) repeats the requirement that an employee be "qualified."
The issue here, therefore, is whether the Claimant is qualified on
the Ballast Dress Cultivator. The Organization alleges that the Claimant had
"successfully operated the Carrier's BDC-61 and similar surfacing gang equipment a total of eighty-e
submitted. In its response on the property, the Carrier stated as follows:
"You [the Organization] contend that Claimant
Judd was purportedly qualified on this equipment, however you have yet to come forth with
even a shred of evidence to substantiate your
allegations. In review of timekeeping documents
we have been unable to determine that
...
[the
Claimant] had ever previously operated this, or
any similar type equipment."
In the face of this direct conflict of alleged facts, the Board is
not able to resolve the issue. The general right to require qualification
prior to displacement is well established, and the Carrier's position must be
supported.
Form 1 Award No. 28476
Page 3 Docket No. MW-28456
90-3-88-3-256
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest: i
ancy J D er - Executive Secretary
Dated at Chicago, Illinois, this 7th day of August 1990.