1. The Agreement was violated when the Carrier

assigned Pittsburgh Division employes instead of

Youngstown Division employes to remove and replace

track ties at Graham, Ohio on the Youngstown

Division on September 8, 12, 13 and 14, 1988

(System Docket MW-237).

2. As a consequence of the aforesaid violation,

Foreman D. Unkefer, Class 2 Machine Operator M.

Closson and Vehicle Operator J. Brooks shall each

be allowed thirty-two (32) hours of pay at their

respective straight time rates."

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 employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction oven the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

This dispute arose when the Carrier assigned Pittsburgh Division employees instead of Youngstown Division employees to remove and replace track ties at Graham, Ohio, on the Youngstown Division. The Pittsburgh Division employees do not hold seniority within the Youngstown Seniority District. The central dispute is whether there were any qualified tie handler operators available on the Youngstown Division at the time.

There are three claimants: Mr. Closson, Mr. Brooks and Mr. Unkefer who hold seniority in the Youngstown Division. During the handling of the dispute on the property, the Carrier discovered that Mr. Unkefer was a qualified tie handler operator and his portion of the claim was sustained and he was paid the requested amount. Since Mr. Unkefer's claim has been accepted and paid by the Carrier, there is no need for this Board to consider his claim any further.

The evidence exchanged during the handling of the dispute on the property is minimal. Claimants have submitted a machine operators roster within the Youngstown Division. But this roster gives no indication as to whether any of these operators are qualified tie handlers. The Carrier has submitted the claimants' MW-200 forms which shows that they were not tie handler operators. However, this was submitted on April 25, 1990. Claimants gave notice of their intent to file an ex parte submission on April 18, 1990. Claimants have objected to the admission of these forms on this basis. Since these forms were not submitted prior to the Organization's notice, they are improper evidence and will not be considered by this Board in the handling of this dispute.

The Organization has presented no evidence that claimants were qualified to perform tie handling work. The issues that must be decided then, are whether the Carrier was obligated to train them. The organization has cited Third Division Award 16960 in support of its position. In that award, the carrier had installed new equipment and modified signal circuits. The claimant was regularly assigned as TCS Maintainer. On the disputed days, claimant performed all the work he was capable of and paid for all his time. Due to his unfamiliarity with the new equipment he was found unable to properly interpret plans and therefore unable to accomplish the work in its entirety. Supervisors were used to complete the work. The Board found that the claimant was unable to perform the work but that under the agreement he was the only man on the job who could claim the work under the Scope Rule. The Board sustained the claim, finding that the Carrier had a duty to train its personnel.

"We re-affirm the doctrine enunciated in our Awards 10932, 11142 and 11151 wherein we hold that one who would claim the right to perform work must first possess the qualifications necessary to do such work. In the instant case the first denial letter complained that Aul 'was unable to properly interpret plans of new equipment which Mr. Aul had never seen before.'

We believe that the training of personnel to handle new equipment is the joint responsibility of Carrier and employes. But the initiation must come from management.

Only when management has discharged its training responsibility can it avail itself of defense against an untrained employee claiming work.

We are unable to find any indication that Carrier initiated this project with the slightest deference to the applicable agreement. The conclusion is inescapable that on this project Aul was demoted to helper and the three supervisors were intended as a major part of the work force."

The parties addressed this issue in only a very cursory way. The Organization simply claimed that the Carrier had a duty to train its employees. The Carrier briefly states in its supplemental memorandum that it did not have time to train claimants for this work in four days.

In Third Division Award 16960, it appeared that none of the employees required to perform the work under the contract, had been trained to use the new equipment necessary to perform that work. While the Carrier does have the responsibility to train a requisite number of its employees to perform tie handling work, this Board has not been presented with any evidence that the Carrier has not trained an adequate number of tie handlers to discharge its training responsibility.

The Organization further argues that who they name as a claimant doesn't matter insofar as the violation of the Agreement is concerned. The fact that other employees on the Youngstown Division may have a better right to make a claim is of no import. The Organization cites several awards in support of this position. None of these Awards, however, involved a situation where a claimant was not qualified to perform the work at issue. These were all cases where the claimant was unavailable.

The Awards submitted by claimants are not the only authority on this issue. There is conflicting authority with respect to whether the claimant in a case must have suffered an actual loss as a result of a violation. This Board prefers to adopt the reasoning set forth in Third Division Award 28889 and in Second Division Award 12136. In Third Division Award 28889, the Board held,

"This Board is aware of the divergence of awards in this difficult area where a violation has been found but no loss has been established. We understand the emptiness' associated with a violation without a remedy. However, we believe the better reasoned and more jurisdictionally sound line of decisions does not provide for an award of damages where there is no proven

cognizable loss causally traceable to the violation of the Agreement."

The claimants in this case have not shown that they are qualified tie handler operators or that the Carrier had a responsibility to train them to be tie handler operators. Therefore, claimants suffered no economic loss when Carrier assigned Pittsburgh Division employees to perform tie handling work within the Youngstown Division.

A W A R D