Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29218
THIRD DIVISION
Docket No. MW-28305
92-3-88-3-66
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Maintenance of Clay Employes
PARTIES TO DISPUTE:
(Boo Line Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier called junior
employe R. Kasprowicz instead of Messrs. D. L. Nelson or R. F. Gibson to fill
a vacancy on Crew 241 from June 30 through August 10, 1986 (System File 8307
#11490N/800-46-B-270).
(2) As a consequence of the aforesaid violation, Claimant R. F.
Gibson shall be allowed pay and all other benefits equal to those earned by R.
Kasprowicz on July 9, 10, 11, 17 and 18, 1986 and Claimant D. L. Nelson shall
be allowed pay and all other benefits equal to those earned by R. Kasprowicz
for all other days beginning June 30 and continuing through August 10, 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.
This Claim alleges that a violation of the Agreement occurred when
Carrier improperly bypassed Claimant's seniority when it recalled a junior
employee to a Utility Tractor Operator assignment.
The Organization says, in essence, the Claimants were senior, qualified and available for the as
Memorandum of Understanding, were entitled to be contacted and offered recall
when the assignment became available. The Organization argues the Carrier had
no proper justification for determining that Claimants were not fit, available
or qualified for the assignment.
Form 1 Award No. 29218
Page 2 Docket No. MW-28305
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Carrier contends, first, that the Claim is invalid, ab initio, because it is vague
argues that it was justified in determining the Claimants to be unfit or unqualified for the assignm
determinations and that the Organization has not satisfied its burden to
overcame Carrier's determination.
We have thoroughly reviewed the record concerning the issues raised
by the parties on the property. That review prevents us from agreeing with
Carrier's contention that the Claim is flawed with vagueness and a lack of
requisite specificity. We find that the Claim contains more than sufficient
information to allow Carrier to prepare its defense. The Claim gives the
names of the Claimants and the junior employee, their respective seniority
dates, the calendar dates which the Claim covers, a listing of rules allegedly
violated, a description that it is based on an out-of-seniority recall, and a
request for a make-whole remedy.
Regarding the merits, we note that numerous Awards of this Board
recognize that Carrier has the right to judge employee fitness, ability and
qualification for a job assignment and that Carrier's judgment will not be set
aside unless it is shown to have been made unreasonably, arbitrarily or capriciously. The Organizati
On this record, we find that the Organization sufficiently challenged
Carrier's determination of Claimant's fitness and qualifications. As to one
Claimant, the Organization denied certain statements attributed to the Claimant and it went on to pr
one Claimant had previously worked as the Tractor Operator. This shifted the
burden of proof to the Carrier to support its determination. Carrier produced
only a vague statement that the Claimant once said, under unspecified circumstances, that "...he did
such evidence to be a sufficient basis for concluding that the one Claimant
waived his recall rights and preferred continued furlough to working in the
disputed assignment. This is especially so in view of the Claimant's denial
that he made the statement.
As to the other Claimant, after the Organization described how the
lack of a driver's license was not a valid basis for disqualification, Carrier
did not attempt to refute the Organization's description. Moreover, it thereafter provided no suppor
In view of the foregoing reasons, the Claim must be allowed. Claimants should be made whole.
A W A R D
Claim sustained.
Form 1 Award No. 29218
Page 3 Docket No. MW-28305
92-3-88-3-66
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. Executive Secretary
Dated at Chicago, Illinois, this 7th day of May 1992.