THIRD DIVISION
Award No. 44564 Docket No. MW-46338
22-3-NRAB-00003-210063
The Third Division consisted of the regular members and in addition Referee
B. Helburn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference
(National Railroad Passenger Corporation (Amtrak) STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Carrier violated the Agreement when it failed to and refused to offer and assign training to employes J. Hawkins, D. Knapp, S. Johnson, D. Marshall, S. Humphries, J. Teeter, N. Tonkin, P. Lynn,
J. Anteau, J. Fonseca, J. Frye, J. Knapp, R. Williams, J. Brooks, M. Young, A. Blanton and J. McKinney at the Holland Welding School based upon seniority preference in accordance with the seniority roster and instead offered and assigned the training to junior employes E. Guiterrez and K. Gunterman (Carrier’s File BMWE- 156972-TC NRP.
As a consequence of the violation referred to in Part (1) above, Claimants J. Hawkins, D. Knapp, S. Johnson, D. Marshall, S. Humphries, J. Teeter, N. Tonkin, P. Lynn, J. Anteau, J. Fonseca, J. Frye, J. Knapp, R. Williams, J. Brooks, M. Young, A. Blanton and
McKinney must now be afforded the opportunity to attend Holland Welding Training School and the preference to attend be assigned on a seniority basis to ensure the welder/welder helper roster is accurately based upon actual established seniority and not upon arbitrary assigned training. Additionally, the positions of welder shall be advertised without any reference to Holland Welder Training until all Claimants affected are afforded the opportunity to attend Holland Welder Training. Additionally, Claimants shall now receive a one hundred dollar ($100.00) penalty and an additional twenty-five dollars ($25.00) per Claimant until the
Carrier rectifies this matter and adopts a policy going forward to assign training based on seniority to protect the integrity of the Agreement and the established seniority roster of Amtrak employes.”
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.
According to the Organization, the above-named Claimants have established and hold seniority within the Carrier’s Maintenance of Way Department. They are assigned to Amtrak’s Michigan Line. When the Carrier allegedly bypassed them for Holland Welder Training in favor of two junior employees, a timely claim was filed, processed on the property without resolution and thereafter progressed to this Board for final and binding adjudication.
The Organization asserts that Rules 1, 5, 7 and 8 were violated when the Claimants’ seniority rights were ignored, adversely affecting them. Rule 7(1) was allegedly violated when the Carrier neglected to provide the General Chairman with copies of the updated roster each January. The Carrier has not provided supporting evidence for the contention that the Claimants were asked in descending order of seniority if they wished to take the training and gave negative responses. The Organization has the prerogative to name the Claimants. The Carrier cannot violate the Agreement by supposedly determining qualifications. The shift to be worked is irrelevant. Moreover, because the Carrier allegedly did not render a decision on the second step appeal within the required sixty (60) days, the claim must be “allowed as presented” and the requested remedy, which is entirely proper under the circumstances and necessary to enforce the integrity of the Agreement, granted.
The Carrier insists that it complied with the sixty (60) day mandate. The Organization’s second-level appeal was dated October 11, 2019 and received by the Carrier on October 15, 2019. The Carrier’s response was dated and mailed—in other words rendered—on December 11, 2019 and received the next day. See on-property Third Division Awards 29848 and 36048.
The claim must be denied on the merits because the Agreement was not violated. The training was offered in order of seniority, but deemed undesirable and refused before employees E. Guiterrez and K. Gunterman accepted the opportunity. The training was for pay at the Welder rate, not the Foreman rate. No requests for Holland Welder Training were denied. Claimants who rejected the training opportunity were deemed unqualified since Amtrak had the right to decide qualifications. This can be viewed as a case in which the Organization has not met its burden of proof or as a case that presents an irreconcilable factual conflict requiring dismissal. Furthermore, the requested remedy is inappropriate for several reasons. Claimants include two (2) ARASA Supervisors, two (2) employees who resigned in advance of the training, and E Young, P. Lynn and N. Tonkin who were already qualified. A. Blanton is junior to E. Guiterrez and K. Gunterman. No wages were lost. The Agreement does not provide for punitive damages. Part of the requested remedy would add language to the Agreement or inappropriately provide for injunctive relief.
The Board first addresses the Organization’s contention that Rule 14 was violated because the decision denying the claim was not “rendered” within sixty (60) days of the date of the second-level appeal. The question for the Board involves the meaning of “rendered.” Is it the date mailed or the date received? None of the cases submitted by the Organization speak to the question, as they involve instances when the denials were not mailed within sixty (60) days, were never mailed, were given verbally but not in writing or were given by an individual other than the one specifically named in Rule 14. On-property precedent is found in Third Division Award 36048 in which a denial was mailed on the 60th day after the date the claim was mailed and received by the Organization on the next day. The Board found that “rendered” meant date mailed, not date received. This Board subscribes to the precedent.
The Board declines to address the Organization’s contention that Rule 7(1) was violated because the General Chairman was not provided a copy of the seniority roster on an annual basis each January. The allegation is not part of the claim before this Board and has no bearing on the Board’s assessment of the “bypassed for training”
claim. That allegation can be distinguished from a contracting out case in which the claim includes both an allegation that Maintenance of Way work was improperly contracted to outside forces and that no proper notice was provided.
Regarding the offer of training, the on-property correspondence includes the following statement from Will Simmons:
For the Holland Welder Training claim, no one was furloughed at the time this claim.
Also, this work was presented as night work only and was presented to Johnson that way; he said he wasn’t going to work at night for pennies and demanded if he took it, he would only work it as a foreman. Jordan Knapp stated that he will never weld again unless he is the foreman. David Knapp let his qualifications lapse years ago. Young and Blanton had taken the training to meet the needs on the west end of the Michigan line. No one else wanted this training because they would be performing this work at the welder wage. The two guys holding the welding position were the two to take this training with the understanding that they would be working the welder wage and at night. This training only last (sic) 6 months without performing a Holland weld and then is required to be retaken.
The Organization has made assertions unsupported by statements in the record from allegedly disadvantaged more senior employees that contradict any of the information contained in Mr. Simmons’ statement. Assertions are not evidence or proof. It is well settled in the industry that unchallenged statements must be accepted as factual. The training was offered for a specific purpose—welding on the night shift. The Carrier was not obligated to train those who weren’t prepared to put the training to use. The Organization has failed to meet its burden of establishing a violation of Rule 5-Seniority.
Claim denied.
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 8th day of October 2021.