Claimant had trainman ibraiceman-yardman) seniority dating !ruin either his hire as a switchman on ?Jay 15, 1961, according to Carrier, or a brakeman on !slay 2, 1U7 g, according to the Organization He established engineer wnierity it Marci3, 1969, after successfully completing the Locomotive Engineer Training Progran
On March 26, 1883. while rrorkh4 as eNincer on a yard job in Memphis Terminal, he aliergedly passed a stop signal without proper authority. Under FRA Regulations, if such conduct is established in a decertification tearing, there s a mandatw5· requirement of suspension of an engineer's certificate for 30 days- Withoat a certificate, under the FRA Regulations, an employee may not work as an engineer. Also under the Regulations, it is Carrier's responsibility to enforce the requirement, and
a formal investigation under Schedule Dxscipfne Rules serves as err appropriate decer#ifacation hearing- Carrier lifted Claimant's cert~.ficatc ;rn trfarc!, so, -and held trim nut of service pending hearing-
Carrier held such a hearing (investigation) on April 5, 41893. Neither party supplied the Board v,rih any information about the investigation - charges, notices., transcript, exhibits, etc. Carrier simply states that based on the facts developed at !.he hearing, it notified Ctaimant that If;s engineer certificate %vas suspended fo: 30 days beginning F,prit R, 1993. Apparently, Carrier fo=und no independent violation of its Operating Rtrtes by Claimant, since it imposed no discipline upon hint as. & result o? tt3e irwastiga:iort.
Claimant thereafter attempted to exercise his trainman serdodiy to displace a. junior braiC$man, bat eras not permitted to do so, On April 23, he filed claim.. for a day's pay earl: day March 27 t_t<nugh Apri.1 7 based or-, Carrier's refusal to permit him to exercise his irmnman venionty on those dates, Carrier's response to the claim wry ". . . on March 26, 11903, you were re,~movea f:o_m serves in accordance with FRA guidelines. Inasmuch as the taw required your remaval front service, you :may not exercise your trainman's seniority "
Both parties cite Article X11_, Section :;(3) of the UTU K9~fi Nationat Agreement Carrier aisso cites Adi6e s?, lecfion Au;'t) of the Bt_E Sched~de,
In the Boa>xd's view, the governir~G ru:e is riot E-tdineer's Ruo 27 W. but X.111, Section 3 (3? of tine IS85 National Agr~emant. As to that rule. Carries argues that claimar=t was not "unable" to hold an en4neer' s essignrne-d; rather, see was We to hold such an assignment, but was unable to work oily due to cert~ficate revocabv-:. The FRA reauiipmont for engineer certiacaton did not come into affect untit after tire 1885 National Ao;eernent: V.erefore. Anide X111. 3 O)vtas not4 referring to inabu'·.r_V, to hold an engineers frosibosl due So cerfitate rcvocation.
The C7rgahiza'jion contnrids that Claimant's situation falls within the specific language of Artic:e X111, 3 (3;. Claimant, because he had no o-cr&,Fica:e. Was unable to holdan engineer's assignment: therefore, he could exercise his trainman's seniority. In effect, the FKA regulation that iaasmar-.: could. not work as an engineer uiithaut a certificate, set aside Ciairnarnfs engineer semprity for the thirty-shay d¢cprtmcation period, As to Carrier's clairri that because the law required his removal from. sprace, he could no! exercise his trainman senior=ity. the Organization points out the' the FRP. has dealt v.ith this issue in Section 240.5 (e) of it Regulations.. In answer to questions whethw Section 246.5 fe) prevents an engineer Whose certificate is suspended from exercising his or her seniority to u*rk in. some other capacity for tl:e railroad, typically as a trammen or corsductdr, FRA issued a paragraph of interpretabve guidance on .-April 9, 199-33. The paragra h stated; "Paragraph (st simpi), refocis FAA's intea? that loos of certification is nix intended to create an eligibility or entitlement to employment in other ser',rice for tl;e railroad- It does not prevent railroad irom recognizing Wch an elrgrbiirry~ or entitlen.ent or othernaise agreeing to allow a person to provide such sa-M~e."
While it is true inablittr to hold an engineer's assignment beiau$e a_ suspension of the engineer's certificate required by tire FRA v;A-xs not a co-ndfitia in existence ai the tuna Article XI<1 3 _3) was negotiated, the Soard is convinced that this later-devslopead form of inability fasts 16Whn the general item of the Ar;icle_ The scheme eras that trainmen who applied forand -successfully attained engrlleer's seriioritf would retaits their seniority and all other rights as train:nea. However, in order a aSSUM cs>nets o* a sufficient suppa'y of e.7gireers to meet lher ope:rating requirements, such former-trainman engineers would only be permitted to exercise such rights i< unable to work in engine serrce. Thus, former trainmen could not go back and forth from e^ginear to trairrttman service :o suit then; own convenience, leaving Carrier high and dry m;iraut the supply of engineers they had bargained for- In this -case. Clairnant was unabte to work as an engineer because of FR(', requirement.,.;, not be-cause of Car: icer rea~arements or his own wes;)es. Under such circurns!ances, in our vie'*w, tire language and intent of Article Alll, 3 ;3;r permitted hirer to exercise his trainman ser;x;ray, and nothing in the FRR Regulati;,ns prohibited Nm from doing so or prohibited Carrier horn fermating him to do so.