STATEMENT OF CLAIM:

STATEMENT OF CLAIM
Appeal by the Organization on behalf of J Davis, regarding the Carrier's decision on November 5, 20041, to assign D. Owen to a welder position, Bulletin No. 4741, at Trenton, MO, instead of assigning the position to Davis. As a remedy, the Organization asks for Davis to be compensated for all lost wages for the time he was unable to work in the welder's position and to acquire a welder seniority date of November 5.

 FINDINGS:


Trento, MO. The bulletin stated that a Commercial Drivers License ("CDL") and a

 certification by the U.S. Department of Transportation ("DOT"), and a Hazardous

 Material endorsement ("Haz-Mat endorsement"), were required for the position. Both

 Davis and Owen bid for the position. Davis holds C&NW district T-2 service and

 trackman seniority date March 27, 2000, and a welder helper seniority date May 4, 2001.

 Owen holds a service and trackman seniority date March 27, 2000, and a welder helper

 1 All dates hereinafter refer to the year 2004 unless otherwise specified.


seniority date July 27, 2001. On November 5, Carrier assigned Owen to the bulletined welder position in question. When the position was assigned, Davis did not possess the Haz-Mat endorsement. The Organization argues Carrier should have assigned Davis, the senior employee, to the bulletined welder position in accordance with the provisions of Rule 16 J of the November 1, 2001 Agreement ("the Agreement"). The Organization also argues by assigning the welder position to Owen, a junior employee, the Carrier also violated Rules 4 D, 713, and 16 J of the Agreement, which serves to establish Davis' contractual right to the bulletined welder position.

 RULE 4- SENIORITY
D. Rights accruing to employees under their seniority entitle them to
 consideration for positions in accordance with their relative length of service
 with the Company.
 RULE 7- SENIORITY LIMITS
    B. Supplemental rosters, where applicable, shall be maintained separately for

    the following classifications for the Seniority Districts identified in Rule 5:


        4. Welders including Helpers


RULE 15-ASSIGNMENTS-PROMOTIONS
Promotion is advancement from a lower classification to a higher classification within a subdepartment.

 Assignments and promotions will be based on seniority, fitness and ability. Fitness and ability being sufficient, seniority shall prevail.

 Employees are entitled to promotions to positions coming within the scope of this Agreement in the Seniority District and Subdepartment in which they hold seniority.

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Employees declining promotion shall not lose their seniority in the class in which employed or in lower classes.

 Employees accepting promotion and failing to qualify within sixty (60) calendar days will return to their former positions. In the event their former position has been filled, the employee filling the position shall return to his former position. RULE 16-BULLETING NEW POSITIONS AND VANCANCIES
    J. Assignments to new or vacant positions shall be as follows: by assigning the senior qualified applicants of the class in which the vacancy occurs as defined in Rule 7. An employee vacating a position shall be eligible for assignment to the vacancy created thereby unless there are no other applicants or the position has been filled and is again vacated.


    If no such qualified applications are received, then the position shall be filled by assigning the senior qualified applicant of the next lower class, successively, until the vacancy is filled.


    Employees accepting promotion and failing to qualify within sixty (60) calendar days will return to their former positions. In the event their former position has been filled, the employee filling the position shall return to his former position.


The Organization asserts Davis was fully qualified for the position since he had the required CDL license and DOT certification. In response to Carrier's defense asserting a Haz-Mat endorsement is necessary to qualify for the position, the Organization contends as follows: Rule 16 provides if no qualified applications are received, as alleged by Carrier, the position should be filled by assigning the senior qualified applicant of the next lower class, successively, until the position is filled. The Organization argues Davis is the senior qualified employee of the lower class and thus, he should have been assigned to the welder position. It also asserts this case involves a promotion. In accordance with Rule 15 of the Agreement, employees promoted from a lower classification are entitled to sixty (60) calendar days to qualify for the position. Therefore, it contends, Davis should

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have been given up to sixty (60) calendar days to secure his Haz-Mat endorsement after the assignment was made. The Organization also claims the past practice has been to allow ten (10) calendar days for employees to secure their Haz-Mat endorsement. It insists Carrier should have given Davis, at a minimum, ten (10) calendar days to secure his Haz-Mat endorsement. In addition, the Organization argues the vehicle assigned to the bulletined welder position does not require the driver to possess a Haz-Mat endorsement since the vehicle does not carry enough hazardous materials to be placarded. According to the Organization, the amounts, type and classification of hazardous materials of the welders' trucks haul do not require the vehicle to be placarded or have placarding displayed. Therefore, it contends, the additional requirement for a Haz-Mat endorsement is arbitrary, unreasonable and unnecessary. In support of its argument, the Organization cites the Carrier's CDL policy dated June 25, 1999, by Vice-President Bill Wimmer, which states, in part, as follows:

    1. Directors, Managers and Supervisors who are responsible for

            bulletining positions will be conversant with and comply with

            Chapter 74 of the Unibn Pacific Railroad Rules effective April 10,

            1994, and rules prescribed in the Federal Motor Safety Regulations

            Pocketbook, Parts 383, 387, and 390-399.


    State regulations can exceed Federal DOT requirements and DMV regulations of the state in which the vehicle is operated must be met.


    2. Vehicles, which are rated more than 10,001 pounds vehicle weight

            but less than 26,001 pounds gross vehicle weight that have not

            been placarded for hazardous materials in a 12 months period

            will not be bulletined with the requirement of a CDL. However,

            operators of the vehicle will be required t be DOT certified.

            (Emphasis added)


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The Organization concedes the trucks assigned to welders weights over 26, 001 pounds gross vehicle eight ("gvw"). Notwithstanding, it argues the additional requirement of a Haz-Mat endorsement is in violation of Carrier's own CDL policy since the vehicle assigned to the welder position in question has not been placarded during the 12 months period preceding the bulletin in question.
 In summary, the Organization asks for the claim to be sustained because the requirement of a Haz-Mat endorsement for the welder's position is not required by Carrier's own CDL policy or by law, and is an arbitrary restriction of Davis' right of seniority.
 Carrier, on the other hand, argues it did not violate the Agreement because the Haz-Mat endorsement requirement on the welder's position is reasonable and in compliance with Federal Law. Rule 15 of the Agreement. specifically states "Assignments and promotions shall be based on seniority, fitness and ability. Fitness and ability being sufficient, seniority shall prevail." Therefore, it asserts, assignments and promotions are not made merely based on seniority. Carrier argues fitness and ability means that the employee should be qualified for the position before the assignment is made. It asserts in evaluating the bids received for the welder position, it determined Davis was not qualified for the position because he did not have the legally required HazMat endorsement. The Carrier argues Owen was assigned to the position because he was in possession of the required CDL license, DOT certification and Haz-Mat endorsement at the time the assignment was made.
 After reviewing the record facts, the Board finds the claim must be denied. When the Carrier exercises its right to assign a position based on fitness and ability, the

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Organization has the burden to prove the claimant's qualifications. Similarly, it is the Organization's burden to demonstrate Carrier exercised its judgment in an unreasonable, arbitrary, capricious or discriminatory manner in order to establish that the Agreement was violated . This Board finds the Organization has not met its burden. It is well established Carrier has the managerial right to establish qualifications on a position except as restricted by law or contract language. Welders and welder helpers require a CDL license and DOT certification. Here, the Organization argues the additional requirement of a Haz-Mat endorsement is arbitrary, unreasonable and unnecessary because the trucks assigned to welders and welder helpers are not required to be placarded since the trucks do not transport the amounts, type and classification of hazardous materials which would require a Haz-Mat endorsement. The Board notes the policy cited by the Organization refers to vehicles which weigh less than 26,001. It is uncontested the trucks assigned to welders and welder helpers weight over 26, 001 and thus, the cited policy does not apply to the facts of this case. Furthermore, this Board finds it is without jurisdiction to interpret the requirements of the Commercial Motor Vehicle Safety Act which defines the Carrier's obligation for transporting hazardous' materials.
 The Board also considered the Organization's argument Carrier should have assigned Davis to the welder position even if he did not posses the required Haz-Mat endorsement. The Board finds the Organization failed to establish its past practice claims since there is simply no probative record evidence to establish a past practice existed granting employees ten (10) calendar days to secure their Haz-Mat endorsement. This Board also finds that an employee cannot begin to demonstrate his abilities for the welder

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position within the sixty (60) calendar days provided by the Agreement when he lacks the legally required licenses, certifications or endorsements to drive the vehicles assigned to them.
 `Fitness and ability' means the employee has the requisite intelligence, training and experience it could be reasonably assumed he could do the work in a satisfactory manner within the time provided by the Agreement. 2 There are minimum requirements the applicants needs to meet before being assigned to the position and given the opportunity to demonstrate abilities. Moreover, it is well established it is Carrier's prerogative to determine if the minimum qualifications of fitness and ability are met and unless there is sufficient probative evidence to the contrary, the Board will not disturb the Carrier's determination. 3 This held Carrier is under no contractual obligation to put an employee in a driving position without the necessary licenses, certifications and endorsements .4 In this case, it is uncontested Davis did not possess the Haz-Mat endorsement required by Federal law at the time the assignment was made. Accordingly, the Board must deny the Organization's claim on behalf of Davis.

 2 Third Division Award Nos, 22357, 5348 3 Third Division Award No. 5004 'Third Division Award No. 28598

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                      AWARD


      Claim denied.


              Martin F. S heinman, Esq. Chairman

              eutral Member


                  t r r


Carrier Member Organi tion Member

 Dated; December 19, 2008

 erofahood Case 9,awd

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