Carrier Member: J. IL Burton Labor Member: D. D. Bartholomay
PARTIES TO DISPUTE:
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
VS.
CONSOLIDATED RAIL CORPORATION
STATEMENT OF CLAIM:
Claim of the Brotherhood (MW-1322) that:
1. The Agreement was violated when the Carrier failed to accept B&B Mechanic R L. Williams'
application for the structural welder position on B&B Advertisement Number 05 dated January
29, 1990.
2. As a consequence of the aforesaid violation, B&B Mechanic R. L. Williams '...should be
compensated for all lost wages commencing from the date of February 8, 1990 at the Structural
Welders rate of pay for ten (10) hours a day Monday through Thursday and to continue until the
Claimant is qualified and or not qualified at which time Rule 3 section 5 will apply. Claimant
should also be credited for all days to show as time worked to apply to all applicable credits.'
FINDINGS:
Upon the whole record and all the evidence, after hearing in the Carrier's Office,
Philadelphia, Pennsylvania, the Board finds that the parties herein are Carrier and Employees
within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted
by agreement and has jurisdiction of the parties and of the subject matter.
DECISION: -
FRED BLACKWELL
Claim Denied.
ATTORNEY AT LAW
79729 ROMAN WAY
GANHERSBURG,
MARYLAND 20979
-
(301/ 977-5090
Public Law Board 3781 l Award No. 91 - Case No. 91
OPINION
This dispute arises from a claim filed on March 9, 1990, on behalf of Claimant
R. L. Williams, on the basis of allegations that the Carrier violated Rule 3, Section 2, of
the 1982 Agreement when it failed to approve the Claimant's application for a Structural
Welder position, advertised in Bulletin No. 05, dated January 29, 1990 with headquarters
at Buffalo, West Virginia.
The pertinent facts are that the Claimant applied for the disputed position of
Structural Welder when it was advertised on January 29, 1990, by Bulletin No. 05. By
bulletin dated February 8, 1990, the Carrier gave notice of its determination that there
were no qualified bidders for the position. On February 12, 1990, the position was readvertised and on February 22, 1990, the position was awarded to another Employee
who was deemed qualified to perform the duties of the position.
In these circumstances the Organization asserts that the Carrier's denial of the
Claimant's application was improper because, in two (2) prior instances, the Carrier has
allowed Employees to qualify as Structural Welders after being assigned to a Welder
position, and because the Claimant requested in writing that he be allowed to
demonstrate his ability to perform the duties of the Structural Welder position as per
Article 3, Section 2, of the parties' Agreement.
The Carrier submits that its denial of the claim was proper because the Carrier
is not obligated to award positions to Employees who lack the requisite qualifications to
FRED BLACKWELL
ArroRNEY AT LAW
perform the duties of the position, and that the Claimant did not make a written request,
19129 ROMAN WAY
GAITHERSBURG,
MARYLAND 20579
(381/ 9775008
Public Law Board 3781 ! Award No. 91 - Case No. 91
under the provisions in Rule 3, Section 2, of the Agreement authorizing same, to be
allowed an opportunity to give a reasonable, practical demonstration of his qualifications
to perform the duties of the position in dispute. The Carrier also makes a procedural
objection that the Organization did not submit for handling on the property the document
proffered in the Organization's submission, to prove the fact that Claimant requested in
writing to be allowed the opportunity to demonstrate his ability to perform the duties of
the welder position, Organization Exhibit B, and that said Exhibit B is therefore barred
from consideration by the Board in the determination of the issue in the instant
proceeding.
Rule 3, Section 2 of the 1982 Agreement, in pertinent part reads as follows:
"Rule 3 - Selection of Positions
Section 2. Qualifications
for
positions
In making application
for
an
advertised position or
vacancy,
or
in the exercise of
seniority, an employee will
be
permitted, on written request, or
may be required, to give a reasonable, practical demonstration of
his qualifications to perform the duties of
the
position. "
From full review of the whole record,' the Board finds that the claim is not
supported by the requisite record evidence and accordingly, the claim will be denied for
want of proof.
The text of Rule 3, Section 2, of the Agreement contains no explicit requirement
FRED BLACKWELL
All prior authorities submitted for the record have been considered and analyzed in arriving ATTORNEY AT LAW
at this decision.
19129 ROMAN WAY
GARHERSBLIRG,
MARYLAND 20879
(3011977-soon
Public Law Board 3781 / Award No. 91 - Case No. 91
that allows an Employee to qualify as a Welder after being assigned to a Welder
position, and the text of the rule contains no language which could be so construed.
Further, the two (2) cited instances, in which Employees qualified after being awarded
Welder jobs, are insufficient to establish a procedure that modifies the text of the rule so
as to create an Employee right to qualify as a Welder after being assigned to a Welder
position.
The Board further finds valid the Carrier's objection to the consideration in this
proceeding of Organization's Exhibit B, on the ground that such exhibit was not handled
on the property. The text of Exhibit B reads as follows:
"1 R. L.
Williams
request to
be qualified for a Structural Welder as
with
Rule 3 Section 2
qualification for position #05."
The statement bearing the Claimant's signature is not dated. It had not been
submitted to the Carrier when the Carrier's highest Officer denied the claim by letter
dated December 12, 1990; this letter expressly asserted that "there has been no showing that
Mr. Williams made a written request other than the bid submitted for the
welder's position." (CX 4) The Organization's December 17 response to the Carriers
final denial of the claim, noted an intent to advance the claim to a Public Law Board, but
made no reference to Exhibit B. On the basis of this evidence, the Board can but find
that Exhibit B was not handled on the property and thus cannot be considered by the
Board in the determination of the confronting claim.
FRED BLACKWELL
In view of the foregoing, and based on the record as a whole, the claim will be
ATTORNEY AT LAW 19129 ROMAN WAY GAITHERSBURG, MARYLAND 20879 (301/ 977-5000
Public Law Board 3781 / Award No. 91 - Case No. 91
denied for lack of record support
.Z
Fred Blackwell
Chairman I Neutral Member
Public Law Board No. 3781
September 16, 1997
FRED NELACY AT
2
The references in the Carrier's submission to the Claimant being given a welding test in
June 1990, have been found not relevant to the determination of this dispute. 19129 ROMAN MY GARHERSBURG, MARYLAND 20979 (301/ 977-5000
Public Law Board 3781 / Award No. 91 - Case No. 91
AWARD
The Carrier did not violate the agreement. Accordingly, the claim is hereby
denied for lack of record support.
BY ORDER OF PUBLIC LAW BOARD NO. 3781.
Fred Blackwell, Neutral Member
. H Burton, Carrier Member d .D\Bartholomay, Laborlbltmber
Executed on
r
Z' , 1997
DOC\CONRAIL\3781\91-91.516 -