Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39647
Docket No. MW-37892
08-3-NRAB-00003-030292
(03-3-292)

The Third Division consisted of the regular members and in addition Referee Susan R. Brown when award was rendered.


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: ( (BNSF Railway Company (former Burlington ( Northern Railway Company)

STATEMENT OF CLAIM:





FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Page 2

Award No. 39647
Docket No. MW-37892
08-3-NRAB-00003-030292
(03-3-292)

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.




The Claimant bid for and was awarded a Welder position on Mobile Gang RP15 on December 15, 2000 with a start date of April 2, 2001. The bulletin required the successful bidder to be DOT qualified and hold a CDL license. The Claimant worked almost five months on the position without any problem before he was removed from the position on August 27, without notice, and placed on a Grinder position.


allegations and assertions by both

parties regarding the circumstance surrounding these events, but contains no evidence to support the assertions. The Carrier contends that the Claimant held the required certifications when he was initially awarded the bid, but produced no evidence to support this assertion. The Carrier also contends that the Claimant's medical certification lapsed sometime in August, making him no longer able to hold the position, but it provided no evidence of that fact. The Organization makes no claim with respect to the Claimant's certification status when he was awarded the bid. It asserts, however, that he procured a temporary DOT medical card within two weeks of being removed from his Welder position, but produced no evidence to that effect. In fact, there is no evidence that the Claimant ever notified the Carrier of his restored eligibility.


In light of this record, or lack thereof, the Board is unable to issue a reasoned analysis with respect to how the Agreement may be applied to the facts. As it is the Organization's burden to prove its case, the claim must be dismissed.


The record before the Board is filled
Form 1 Award No. 39647
Page 3 Docket No. MW-37892
08-3-NRAB-00003-030292
(03-3-292)







This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.



                      By Order of Third Division


Dated at Chicago, lliaois, this 22nd day of April 2009.