BEFORE PUBLIC LAW BOARD NO. 6915
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
DIVISION - IBT RAIL CONFERENCE
and
CN -
WISCONSIN CENTRAL RAILROAD
Case No. 49
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier refused to allow employee C. Rueth
to exercise his seniority in accordance with Rule 6 of the Agreement after he was
disqualified from a foreman position on May 13, 2009 (Carrier's File WCBMWED-2009-00012).
2. As a consequence of the violation referred to in Part 1 above, Mr. Rueth shall be
compensated for eight ($) hours each day for May 13, 14, 15, 1$, 19, 20, 21, and
22, 2009 at the applicable machine Operator D straight time rate of pay and any
overtime that would have been worked on the RS73 Rail Gang position of
Machine Operator D Heater at the applicable time and one-half rate of pay."
FINDINGS:
The Organization filed a claim on the Claimant's behalf, alleging that the Carrier
violated the parties' Agreement when it refused to afford the Claimant the right to
exercise his seniority onto another position after he was disqualified from a foreman
position and instead immediately placed the Claimant into furlough status. The Carrier
denied the claim.
The Organization contends that the instant claim should be sustained in its entirety
because the Claimant did not desire or bid into the foreman position, because Rule 6C
obligated the Carrier to allow the Claimant to exercise his seniority and displace to a
position he was qualified to occupy once he no longer held the qualifications to occupy
the force-assigned foreman position, because the Carrier unreasonably and unilaterally
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AWARD 49
placed the Claimant into furlough status without affording him the right to exercise his
seniority under Rules 6 and 11, and because
employee be considered unqualified for an assignment then the employee shall be entitled
to exercise seniority under Rule 11. The Carrier contends that the instant claim should be
denied in its entirety because the Organization failed to meet its burden of proof in that
the Claimant knowingly allowed his Commercial Motor Vehicle Medical Certificate to
expire and this action was designed to purposely avoid being placed in the foreman
position, because the Claimant was the sole cause of his disqualification as a foreman and
of any loss of compensation during the period claimed so the rule required that the
Claimant be furloughed, because Rule 6C does not apply in that such a Certificate is a
general qualification and Rule 6C addresses specific qualifications and the Claimant was
qualified when he was awarded the foreman position, because the Claimant was not
qualified to exercise his seniority so he was properly placed in furlough status until he
placed himself during the next bid cycle, and because the Claimant is not entitled to any
remedy under the circumstances.
The parties being unable to resolve their dispute, this matter came before this
34 clearly provides that shop
Board.
This Board has reviewed the record in this case, and we find that the Organization
has failed to meet its burden of proof that the Carrier violated the Agreement when it
refused to allow the Claimant the right to exercise his seniority after he was disqualified
from his foreman position on May 13, 2009. Therefore, the claim must be denied.
The record reveals that the Claimant was assigned to a vacant assistant foreman's
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AWARD 49
position on March 2'7, 2009. That position included a qualification of possessing a
commercial motor vehicle medical certificate. The Claimant worked that position until
May 8, 2009, when he was force assigned to a foreman's position. The record reveals
that the Claimant allowed his commercial motor vehicle medical certificate to expire on
May 10, 2009, rendering himself without the qualifications to hold either the assistant
foreman position or the foreman position to which he was recently assigned. Since the
Claimant was unqualified to hold either the position that he had held or the one that he
had been placed into on May 9, 2009, he was placed on furloughed status. The Claimant
bid a position in the next bid cycle and was awarded a position for which he possessed
the qualifications and went back to work on May 22, 2009.
The Organization has not shown that the Claimant's rights were violated. The
Claimant knowingly failed to renew his commercial motor vehicle medical certificate,
which rendered him unqualified to work either the assistant foreman position or the
foreman position. Rule 6C was not applicable because it addresses specific
qualifications. The Claimant was qualified when he was first awarded his foreman
position; but since the Claimant was responsible for rendering himself unable to work in
that position, Rule 6C does not apply to this situation. The Claimant admitted during an
investigation that he did not report to his new position because his "medical card ran
out." When he was asked why he did not make an appointment to have it renewed, he
stated he "just didn't feel like it."
Since the Organization failed to meet its burden of proof in this case, the claim
must be denied.
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AWARD 49
The claim is denied.
CAF:RIER ~~,~L'~ItMBER
DATED:
PET . ME ., S
Ne 6ber
ORGANIZATIO"
MBER
DATED: ~~
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