Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43424 Docket No. MW-42561 19-3-NRAB-00003-140202

The Third Division consisted of the regular members and in addition Referee Paul Betts when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(Union Pacific Railroad Company

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier failed to properly bulletin and assign the position of switch maintainer headquartered in Salt Lake City, Utah during January 2013 and when it assigned a junior employe thereto instead of Mr. A. Wimmer who was senior and qualified (System File D-1320U301/1580501).

(2) As a consequence of the violation referred to in Part (1) above, Claimant A. Wimmer shall:

'*** be allowed the seniority denied him on January 17, 2013, when the Carrier canceled the proper Bulletin UTD #51603. Further, the current position as assigned shall be abolished and subsequently advertised properly. Claimant Wimmer shall be compensated for all loss of income when he was not allowed to assume the duties of Switch Maintainer on January 17 and continuing until the violation ceases.

Specifically, Claimant Wimmer shall be paid at the respective rate for all hours, straight time and overtime that the junior employee worked as the assignee to the position. Further, Claimant shall be granted any benefits such as health insurance and vacation credit that he otherwise would have been entitled to. These are benefits and compensation the Claimant would have been entitled to in the absence of the violation of our Collective Bargaining Agreement when the Carrier failed to properly allow Claimant to be assigned to the position. This claim is considered as 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.

Parties to said dispute were given due notice of hearing thereon.

The issue before the Board is whether the Carrier improperly bulletined and assigned the position of switch maintainer to an employee having less seniority than the Claimant.

The facts giving rise to this claim are not in dispute. In December 2010, the Claimant had been dismissed from service due to absenteeism. In an Award dated October 30, 2012, the Claimant was returned to service on a "Last Chance Basis" with no back pay (PLB 6302, Award No. 215). In January 2013, the Claimant was on furlough when the Carrier bulletined a position for a switch maintainer. The initial bulletin was posted by the Carrier on January 3, 2013 and contained a requirement for a commercial driver's license (CDL). The initial bulletin was then cancelled and a new bulletin for the position was posted on January 10, 2013, absent the CDL requirement. The January 10, 2013 bulletin was also cancelled, and on January 17, 2013, another bulletin for the position was posted, requiring the CDL. The Carrier then awarded the position to E. Peterson. While the Claimant was senior to Mr. Peterson, the Claimant did not possess a CDL.

TheOrganizationarguesa)theswitchmaintainerpositiondidnotrequireaCDL and the requirement was not reasonably related to the position, b) both currently and historically, switch maintainers utilize small pickups or John Deere yard tractors for required work of the position and those performing the work need nothing more than a normal driver's license, c) the Carrier supervisor for the position had a personality conflict with the Claimant and wanted to thwart the Claimant's ability to bid on the position, and d) the Carrier's action was arbitrary and capricious, as the CDL requirement was not reasonably related to the position.

The Carrier argues a) the CDL was required since the employee in the position wouldberequiredtodriveapickupwithagrossvehicleweight(GVW)of13,000pounds and would be pulling a large trailer with a combined GVW greater than 26,000 pounds, b) Manager of Track Maintenance Merrill disputed the assertion by the Organization that a small pickup truck was to be used, and supplied pictures of the actual truck and trailer utilized for the particular position, c) the Organization failed to provide any evidence the Carrier supervisor thwarted the Claimant's ability to bid on the position by attaching unnecessary qualifications to the position.

After a thorough review of the record, the Board finds the Organization has failed to meet its burden of proof. The Organization was concerned as to why the Carrier vacillated back and forth with its three bulletins. When the Organization initially raised the issue that the first bulletin improperly required the CDL, it was presumedthatthepositionwouldonly requiretheoperationofastandardpickuptruck. Upon further investigation, the Carrier determined the position would require driving a large truck with an attached trailer, all of which required the CDL, thus resulting in multiple bulletins. The Organization asserts the Carrier supervisor attached the CDL requirement to the bulletin to simply undermine the Claimant's ability to bid on the position, and that the supervisor was vocal within the group to thwart the Claimant's attempts at retuning to work; however, there was simply no evidence supplied to support this assertion. Even if, arguendo, employees working switch maintainer positions have historically required a regular driver's license to perform the job, that fact alone does not bar the Carrier from attaching the requirement based upon operational needs. The Organization argued that the specific vehicle being used for the position did not require a CDL, but statements supplied by both the Carrier and Organization indicated that the specific truck assigned to the position did require a CDL. Based upon the above, the Board cannot conclude that the Carrier was arbitrary or capricious in adding the CDL qualification to the specified bulletin. As such, the claim must be denied.

Although the Board may not have repeated every itemof documentary evidence nor all the arguments presented, we have considered all the relevant evidence and arguments presented in rendering this Award.

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 1st day of March 2019.