Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33622
Docket No. MW-32348
99-3-95-3-180
The Third Division consisted of the regular members and in addition Referee Martin
H. Malin when award was rendered.
PARTIES TO DISPUTE
:
STATEMENT OF CLAIM
:
(Brotherhood of Maintenance of Way Employes
(Consolidated Rail Corporation
"Claim on behalf of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to permit
Machine Operator A. C. Allis to displace junior employe K. Watson
on the Class 2 Machine Operator's position headquartered at Gang
Mills, New York on August 9, 1993 (System Docket MW-3285).
(2) As a consequence of the violation referred to in Part (1) above, Mr. A.
C. Allis shall be compensated (a) at the Class 2 Machine Operator's
rate for all wage loss suffered, (b) for sixty (60) miles per day at the
applicable mileage rate and (c) for the travel time expended [two (2)
hours] each day the Claimant traveled to his assignment at Hornell as
a result of his being improperly denied the displacement at Gang Mills,
New York beginningAugust 9,1993 and continuing until the violation
ceases."
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
Page 2
Parties to said dispute were given due notice of hearing thereon.
On August 9, 1993, the Claimant attempted to displace a junior employee from a
Machine Operator Class 2 position operating a backhoe. The Claimant did not have a
Federal Highway Administration (FHWA) certification, also known on the property as a
ConRail certification. Because FHWA certification was one of the qualifications for the
position, the Carrier refused to allow the Claimant to displace the junior employee.
The Carrier contends that it properly denied the Claimant's request to displace
because the Claimant was not qualified for the position. The Organization argues, however,
that the Carrier was responsible for certifying the Claimant and that the Carrier may not
rely on the Claimant's lack of FHWA certification when that resulted from the Carrier's
own inaction.
Award No. 33622
`r
Docket No. MW-32348
99-3-95-3-180
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We have reviewed the record carefully. Apart from naked assertions, we find no
evidence regarding the steps that the Claimant took to become FHWA certified. We also
find no evidence of what the Carrier did, or failed to do, that inhibited the Claimant from
becoming FHWA certified. The Organization's assertions that the Carrier prevented the
Claimant from becoming FHWA certified are not evidence. Absent evidence to support the
assertions, we must deny the claim.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.