Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32353
Docket No. MW-31922
97-3-94-3-288
The Third Division consisted of the regular members and in addition Referee
Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Kansas City Southern Railway Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier improperly
disqualified Mr. J. B. Weed from his position of welder helper on
November 20, 1992 (Carrier's File 013.31-465).
(2) As a consequence of the violation referred to in Part (1) above, the
Claimant shall be returned `... to his former position of Welder
Helper, that he be paid for the difference in pay commencing
November 20, 1992, and continuing until such time as he is restored
to his former position of Welder Helper...' "
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, rinds 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. 32353
Page 2 Docket No. MW-31922
97-3-94-3-288
Parties to said dispute were given due notice of hearing thereon.
The Organization filed this instant claim following the Claimant's notification
that he was to exercise seniority due to disqualification as a Welder Helper. The
Claimant was notified by letter dated November 20, 1992 that due to a DWI, he no
longer had a valid Commercial Drivers License (CDL) and would be unable to drive a
Company vehicle. The Organization asserts that Claimant was disciplined without an
Investigation and forced to exercise seniority as a
B&B
Laborer. Even further, the
Organization argues that there is no Rule that requires anyone other than the driver to
hold a valid licence and certainly not the Welder Helper position. The Organization
argues that the CDL has absolutely nothing to do with the Claimant's ability to properly
perform the duties associated with his Helper position. As such, he was unilaterally
removed in violation of the Agreement.
The Carrier rejects the Organization's arguments and rests its position on the
fact that the law requires a CDL. As the Claimant lost his licence, he lost his ability to
properly perform his duties. The Carrier asserts that the Claimant was never
disciplined, but was correctly disqualified from the position of Welder Helper due to his
failure to maintain the required drivers licence. Such license is a matter of law and not
a matter of the Carrier's discretion. The Carrier states that if the Claimant ever again
obtained his CDL the position of Welder Helper would then be obtainable, but not
without the necessary qualification. The Carrier steadfastly denies any Agreement
violation.
The Board can find no probative evidence to discount the Carrier's position that
the CDL is required. There is no dispute that the Claimant lost the licence. The Carrier
stated:
"When the Welding Foreman is off on vacation and/or personal leave days
the Welder Helper steps up to the position of Welding Foreman. When
this happens then the Welder Helper must be able to operate company
vehicle. Also, if there is an emergency or for any reason the position of
Welder Helper must be able to operate vehicle. These vehicles weigh
over 26,000# and the Federal Government has mandated that anyone who
operates a vehicle over 26,000# MUST have their Commercial Drivers'
License."
Form 1 Award No. 32353
Page 3 Docket No. MW-31922
97-3-94-3-288
The Board finds no rebuttal. There is no evidence which refutes the Carrier's
position, supra. Under these instant facts, the claim must fail. There is no proof that the
Carrier's actions are a violation of any Rule of the Agreement.
AWARD
Claim denied.
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 13th day of November 1997.