Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 30284
Docket No. MW-28954
94-3-89-3-365
The Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former
( Missouri Pacific Railroad Company)
STATEMENT OF CLAIM: "Claim of the System Committee of the
Brotherhood that:
(1) The Agreement was violated when Machine
Operator G. D. Weber was disqualified and
removed from the position of machine operator
on Jackson Tamper No. ATS-208J effective June
4, 1987. (Carrier's File 870916 MPR)
(2) As a consequence of the aforesaid violation:
'*** time is claimed in behalf of Mr. Weber
for eight (8) hours pay on June 8, 1987, plus
meal allowance of $9.75 for three days. Claim
also for mileage of 20C per mile for 700 miles
each weekend, and travel time in behalf of Mr.
Weber, each weekend beginning July 11, 1987,
and continuing so long as junior operator
Kottwitz fills position of operator on the
ATS-208J to exclusion of Mr. Weber."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole
record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved
in this dispute are respectively carrier and employee 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.
Form 1 Award No. 30284
Page 2 Docket No. MW-28954
94-3-89-3-365
Parties to said dispute waived right of appearance at hearing
thereon.
On May 8, 1987, the Claimant was assigned by bulletin to the
position of Machine operator to operate an ATS (Production Tamper)
machine. On June
4,
1987, the Claimant was given a one-sentence
letter saying only "You have been disqualified as an operator on
the Jackson Tamper." Subsequently, the instant claim was filed.
The Board has searched the record in vain to determine the
basis of the Carrier's decision to disqualify the Claimant. Other
than the mere pronouncement that he was not qualified, the record
is bare. It is well established that assertions and opinion
without supporting evidence are not sufficient to justify a
disqualification. See Third Division Awards 12931 and 19432.
Given the state of the evidence and record, the Board is
compelled to conclude that the Agreement was violated. The proper
remedy is to pay the Claimant the difference in earnings between
the Jackson Tamper rate and whatever rate he earned for any and all
periods that junior employees in his district may have been
employed as Jackson Tamper Operators. The Parties are directed to
make a joint check of the records to determine the precise remedy
or they may in lieu thereof reach an agreement as to the proper
remedy. It is undisputed that the Claimant subsequently forfeited
his seniority when he failed to respond to a recall. Therefore,
the Carrier's liability will not extend beyond the date of such
forfeiture.
AWARD
Claim sustained in accordance with the Findings.
Form 1 Award No. 30284
Page 3 Docket No. MW-28954
94-3-89-3-365
O R D B R
This Board, after consideration of the dispute identified
above, hereby orders that an award favorable to the Claimant(s) be
made. The carrier is ordered to make the Award effective on or
before 30 days following the postmark date the Award is transmitted
to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of July 1994.