Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43968 Docket No. MW-43195 20-3-NRAB-00003-190401

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

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

PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

(1)     The Agreement was violated when the Carrier assigned junior employe B. Kreikemeier to B&B Blacksmith Position #41694 via award bulletin on April 30, 2014 instead of assigning senior employe T. Bellows thereto (System File C-14-S092-3/10-14-0252 BNR).

(2)     As a consequence of the violation referred to in Part (1) above, Claimant T. Bellows shall ' ... be given the same seniority date and placed ahead of Mr. B.J. Kreikemeier on the seniority roster once he completes the required training that is needed as well as, paid for all of the straight time and overtime work performed by Mr. Kreikemeier on the above cited position at the B&B Blacksmiths rate of pay 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 Organization maintains that on three separate occasions during the same number of months at the end of 2013, the Claimant asked his supervisor, in writing, to be scheduled for training classes that he needed in order to qualify for advanced positions. Thesewritten requestswere inaddition to verbal requests, and spelledout the dates the classes were offered and detailed the number of available openings for each class. He did not receive authorization to attend, and in April, 2014, the Claimant was denied a bid for a Bridge and Building (B&B) Blacksmith position on the grounds that he lacked the very qualifications that he had sought. The Blacksmith position was ultimately awardedtoajunioremployewhohadbeenaffordedthetrainingopportunity denied to the Claimant. The Organization cites the following contract provision:

“RULE 2. SENIORITY RIGHTS AND SUB-DEPARTMENT LIMITS

A.      Rights accruing to employes under their seniority entitles them to consideration for positions in accordance with their relative length of service with the Company, as hereinafter provided.”

The Carrier points out that the junior employe possessed the necessary qualifications for the position in question, while the Claimant did not. In the Carrier’s view, there is no provision requiring two supervisors from different territories to send two employees to class in seniority order. Unlike a position for two like-qualified employees in a single supervisor territory, the junior employee did not bypass a seniorrated employee. There was no obligation that the supervisors coordinate between territories in order to send employees to school in seniority order. The Claimant did not successfully submit a bid sheet for the l404B cycle. He enrolled in the Structural Welding/Fluxcore for July 21, 2014 - August 1, 2014 and has successfully completed the Structural Welding/Stick but will still need to successfully complete the Structural Welding/Fluxcore and Structural Piling Welding Class to obtain the WS3 qualification needed to hold a Structural Welding position.

The Organization counters that the acquisition of the qualificationat issue rested solely in the hands of the Carrier, and it is only because of the Carrier’s unreasonable

denialofopportunity thattheClaimantlackedthequalificationspossessedbythejunior employee. In its view, the Carrier’s abuse of discretion clearly constitutes failure to allow seniority to prevail.

We find the Organization’s position to be persuasive in this case. No rationale explains the denial of the Claimant’s request for training; hence it must be deemed to have been arbitrary and capricious on the Carrier’s part. Had the Claimant completed the training as requested, he would have been in the running for a position which was ultimately awarded to a junior employee. These facts negate any attempted distinction between territories. May 12, 2014 was the report date for the blacksmith position of concern. The Claimant is due compensation for the period of time from this date until he was in fact offered the opportunity to attend the training he requested. The case is remanded to the parties to calculate the appropriate remedy.

AWARD

Claim sustained in accordance with the Findings.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 5th day of March 2020.