Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 31621
Docket No. MW-31175
96-3-93-3-177
The Third Division consisted of the regular members and in addition Referee
Martin H. Malin when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier awarded a Class
3 Machine Operator's position (Position No. 5356-2 Scrap Picker) to junior
employe R A. Simpson instead of Mr. D. B. Novak (System Docket MW2378).
2. As a consequence of the violation referred to in Part (1) above,
the Carrier shall:
. . . compensate Mr. Novak the difference between trackman's rate
and M. O. 3. Mr. Novak should also be paid mileage at the current
rate from his home to his current workplace until such time as he is
furloughed, and then he should be paid mileage from his home to the
location of R A. Simpson's M. O. 3 position, i.e. the instant protest.
If Mr. Novak should be furloughed before Mr. Simpson, Mr. Novak
should be paid all time worked by Mr. Simpson. Mr. Novak should
be placed on the Allegheny "B" M.0.3 Roster."
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. 31621
Page 2 Docket No. MW-31175
96-3-93-3-177
Parties to said dispute waived right of appearance at hearing thereon.
The instant claim challenges Carrier's award of a Machine Operator 3 position
for a scrap picker to an employee who had less seniority than the Claimant. The
Organization contends that Carrier failed to justify its award of the position to the
junior bidder in violation of Rule 3. Carrier contends that it complied with Rule 3 and
awarded the position to the senior qualified applicant. Carrier argues that the
Organization offered no evidence that Claimant was qualified for the job and that
Claimant never requested the opportunity to demonstrate his qualifications.
Rule 3 provides:
"Section 1. Assignment to position.
In the assignment of employees to positions under this Agreement,
qualification being sufficient, seniority shall govern . . . . . .
Section 2. Qualifications for positions.
In making application for an advertised position or vacancy, or in
the exercise
of
seniority, an employee will be permitted, on written request,
or may be required, to give a reasonable, practical demonstration of his
qualifications to perform the duties of the position . .. ."
As moving party in this claim, the Organization has the burden of proof.
Although it is undisputed that Claimant was the more senior employee, our review
of
the
record discloses no evidence that Claimant was qualified for the position. Furthermore,
there is no evidence that Claimant requested to demonstrate his qualifications, in
accordance with Rule 3. Accordingly, the claim must be denied for lack
of
proof.
AWARD
Claim denied.
Form 1 Award No. 31621
Page 3 Docket No. MW-31175
96-3-93-3-177
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 29th day of August 1996.