PROCEEDINGS BEFORE PUBLIC LAW BOARD NO. 3781

AWARD NO. 69

Case No. 69

Referee Fred Blackwell

Carrier Member: J. H. Burton Labor Member: K R. Mason

 PARTIES TO DISPUTE:






STATEMENT OF CLAIM:

 [AS STATED IN THE SUBMISSIONS AND NOT REPEATED HEREIN]

 FINDINGS:








                The question presented by the record is whether the Carrier violated the


FRED BLACKWELL Agreement by not awarding an advertised Structural Welder position to the Claimant, who ATTORNEY AT LAW

 P.O. Box fi095 7.

WEST COLUMBIA,

S.C.29171

19M1791.eoM

          :, Public Law Board No. 3781 j Award No. 69 - Case No. 69

          ;i

          was the senior bidder on the position and who was found not qualified for the position

          because he had not been certified under the Carrier's annual certification test for Structural

          Welders.

            The pertinent facts on the claim, which arose in June 1989 on the Toledo Seniority District, Dearborn Division, now follow.


          ThQ C!aimant, 3&° Iriz;Lha_io r. Roiio, established seniority in the welder classification on May 2, 1977. When the instant claim arose in June 1989, the Claimant ,' was employed as a B&B Foreman at Toledo, Ohio. He had previously held positions as i Structural Welder, but, in April 1989, there were no welder positions on the Toledo Division:

            I

            Prior to April 1989, the welding work for the B&B Department on the Toledo Division was, performed by the B&B Foreman.

          In April 1989, while the B&B Foreman was on leave, the Claimant was asked to: ,take the annual Welders Certification Test scheduled for April 10 and 11, 1989. TheClaimant wrote to his supervisor, declining to take the test and stating that: "If I were a welder I would be glad to take a test but I do not wish to weld as a mechanic as welders and mechanics are on separate rosters and that would be crossing crafts." His letter closed by making reference to Rule 3, Section 2, of the Agreement and quoting its text.

Prior to this letter by Claimant, the Claimant's supervisor wrote a April 12, 1989,; letter stating that the Claimant had said his reason for not taking the test was that he "did! not want to weld anymore" and that the Claimant's not taking the annual test "may affect" FRED BLACKWELL your standing as a qualified bidder for future welding positions.


ATTORNEY AT LAW
P.O. BOX 6095 2
 WEST COLVMBVL
 &C.29171
 (603(791.6096
                      Public Law Board No. 3781 / Award No. 69 - Case No. 69 _

            f

            On May 25, 1989, a Structural Welder position in Toledo was advertised for bid. The Claimant was the senior bidder on the position, but the Carrier rejected his bid because he had not renewed his Structural Welder Certification in the previous month when the annual certification was offered.


            The ^=;__aeioli oaijrrlits that the claim should be sustained because, notwithstanding that Claimant had not taken the annual certification test in April 1989, the, j Carrier should have tested him under Rule 3, Section 2, of the Agreement, which provides l

          i that an applicant for an advertised position will be permitted to give a practical l


          ;!demonstration of his qualifications to perform the duties of the position. i

          I I


                The Carrier submits that the claim should be denied because the Claimant had;

          ~' opportunity to take the annual welder certification test, but refused at his own peril, and that!


                                                                i

            Rule 3, Section 2, of the Agreement did not supersede the Carrier' Annual Welding;

                                                                i

          f Certification Requirement.


                The Claimant notified Carrier in advance of the May 25, 1989, advertisement of the

            Structural Welder position that even though he had not taken the annual welder certification


                                                                test, he was prepared to exercise his rights to be tested on his qualifications on a future I advertisement of a Structural Welder position. The Carrier should have honored the

            Claimant's right to a Rule 3, Section 2, test and the Carrier's failure to do so violated the


-HED BLACKWELL Agreement.
 ATTORNEY AT LAW I
 i
 P.0. BOX 6095 3
 WEST COLUMRA
 X 29171
 (6031791.90% .
                                                                i

                      Public Law Board No. 3781 / Award No. 69 - Case No. 69


          :1

          ' The Carrier correctly states that Rule 3, Section 2, does not control the Carrier's

          annual certification test. However, neither does the annual test control the Rule 3 test. The

          two tests exist independently of one another and even though the Claimant's passing the

          annual test would have obviated his need to take a test under Rule 3, Section 2, the fact

          that Claimant did not take the annual test had no affect on his right to a Rule 3, Section 2,

          :;test cftcr a Sil.iciuraiWeider position was advertised.


            I

            I Claimant's right to a Rule 3, Section 2, test on his qualifications for the advertised

            position was clear cut. Such right was not annulled or abolished by the existence of the

            annual certification test, and the Carrier's failure to allow Claimant to test under Rule 3 for

            the subject position violated the Agreement.

            In conclusion it is noted that the ruling of this Award is limited to the rights of. Claimant Rollo, although the Organization contended on the property that the Carrier should have offered the Toledo Division B&B Welders the opportunity to take the annual; welder certification test. This contention is not developed in the Organization's submission and no information to validate the contention is contained in the record. Accordingly, tt.is Award makes no ruling on this contention.


                In view of the foregoing, and based on the record as a whole, the claim will be;


            sustained as hereinafter provided. !

                                                                I

                                                                i


                                                                AWARD: i


                  The evidence in the record as a whole established that the Carrier violated the


ATTORNEY AT LAW
 -.-ILD BLACKWELL Agreement and accordingly, the claim is sustained as follows: i

P.0. Box 8095

WESTCOLUMB&

&c.29171

18031791-8088

                    Public Law Board No. 3781 / Award No. 69 - Case No. 69


                1. The Carrier violated the Agreement by not allowing Claimant Rollo an opportunity to test for the advertised welder position pursuant to Rule 3, Section 2, of the Agreement.

                2. Compensation for Claimant was not requested in the initial claim and none i.; allowed.

                3. The Organization's reference on the property to the Carrier's failure to offer the annual welder test to the Toledo Division $&TZ u7~-ide,-s is daposed of as per the Opinion.


          BY ORDER OF PUBLIC LAW BOARD NO. 3781. n i

                                V


                            Fred Blackwell, . 'eutral Member


              7

              J. . Burton. Carrier Member K R M,~so~abor Member


          ~IExecuted on 'Y 1993

          D\CONRAIL\3781\69-69.415 '

          i

          j


-RED BLACKWELL I
 ATTORNEY AT LAW
 P.O. Box sons 5
 WEST COLUH"41,
 S.C.2417t
 isml 79t.soe6