BROTHERHOOD OF MAINTENANCE OF )

      WAY EMPLOYES )


      VS. ) PARTIES TO

      DISPUTE

      UNION PACIFIC RAILROAD COMPANY )


STATEMENT OF CLAIM:

        Claim of the System Committee of the Brotherhood that:


Appeal by the Organization on behalf of N. Gay, a System Tie and Rail Inspector ("STRI"), regarding the Carrier's refusal to allow Gay to exercise his seniority over junior employee D. Kruse, and to replace D. Kruse in Gang 8952 beginning on May 3, 20041 and continuing thereafter. The Organization asks for Gay to be assigned to Gang 8952 as a STRI and for him to be compensated for all hours (straight time and overtime) worked by junior employee D. Kruse beginning May 3, until the Claim is resolved.

 FINDINGS:
 The following facts are undisputed: Claimant has a service seniority date of June 4, 1970. Claimant had a seniority in the Track Subdepartment Group 6 as a STRI date August 16, 1991. Claimant acquired his seniority on the SRTI as part of an agreement reached between Carrier and the Organization. However, Claimant never worked as a STRI or received any training provided to SRTI employees. From 1992 until April 23, when the position was abolished, Claimant worked as a Flange Oiler Maintainer in the

 ' All dates hereinafter refer to the year 2004 unless otherwise specified.
                                            PL13 No. 7100 Award 15


    Track Subdepartment Group 3. On May 3, Claimant reported for duty to Gang 8952.


    seeking to exercise his seniority rights to "bump" junior employee D. Kruse from his


    SRTI position.


        By letter dated May 3, sent by Darrell Neuner, Manager of Track Programs, to


    Gay, Carrier informed Claimant the following:


        Dear Sir:


        This letter is to advise you that you are hereby disqualified as a System Tie/Rail Inspector for the following reasons:


        On May 3, 2004, while attempting to place yourself on Gang 8952, Track Supervisor Brent Starr asked you if you could use the GPS Tie Marking System and you replied "No". Also you were asked to access information from the computer to down load `Tie Spot' information which you were unable to perform, which is crucial information for the duties of a Tie/Rail Inspector. At this time you were not allowed to bump the qualified Tie/Rail inspector. Since you have demonstrated your inability to perform the duties that are essential:


        I have no choice than to advise you the effective this day, you are disqualified as a System Tie/Rail Inspector, and you must exercise your seniority as allowed.


        Darrell Neuner ' Manager Track Programs2


      By letter dated May 24, addressed to Bull Huber, the Director of Track Programs,


Claimant requested Carrier to train him on the computer programs associated with the

    STRI position.' Carrier denied the request, no formal training on the use of the GPS or


the new technology associated with the STRI position was offered to employees holding

 2 The Organization's Submission Exhibit No. A-1
 3 The Organization's Submission Exhibit No. A-5

                          2

                                          PL13 No. 7100 Award 15


STRI seniority. Rather, Carrier trained the employees who were working as STRI.

    The Organization argues Carrier violated Rule 1, 9, 15, 17, 18, 19 21 and 22 of


the July 1, 2001 Agreement, when it failed or refused to allow Claimant to replace junior

 Kruse for the STRI position.

    RULE 1- SCOPE OF THE AGREEMET


    This Agreement will govern the wages and working conditions of employees in the Maintenance of Way and Structures Department listed in Rule 4 represented by the Brotherhood of Maintenance of Way Employes Organization.


    RULE 9- TRACK SUBDEPARTMENT


    Construction and maintenance of roadway and track, such as rail laying, tie renewals, ballasting, surfacing and lining track, fabrication of track panels, maintaining and renewing frogs, switches, railroad crossing, etc., repairing existing right of way fences. Construction of new fences up to one continuous mile, ordinary "individual repair or replacement of signs, mowing and cleaning right of way, loading, unloading and handling of track material and other work incidental hereto will be performed by forces in the Track Subdepartment.


            (a) SYSTEM TIE AND RAIL INSPECTOR- Inspection of rail, ties, and track structure in connection with major program renewals and replacements.


    RULE 15- ESTABLISHMENT OF SENIORITY-WHEN ESTABLISHED


        (a) Seniority of new employees hired in a particular class

            begins with the date their pay starts.


        (b) Seniority of employees accepting assignment in another

            class in which seniority is not already held will begin with

            the date assigned by bulletin. Ranking of employees

            promoted and assigned by bulletin on the same date will be

            determined in the following sequential order:


                        3

                                      PLB No. 7100 Award 15


        (1) Seniority in the group involved; or

        (2) Seniority in the subdepartment involved; or

        (3) Seniority in the Maintenance of Way Department;

            or

        (4) Relative of the employees involved by ranking the

            the oldest employee senior.


      (c) Except as provided in Rules I 0(b) and 19(e), employees

        promoted to a position who are disqualified thereon within

        thirty (30) working days will not acquire a seniority date as

        a result thereof. Employees who fail to qualify for the same

        assignment (e.g. Speed Swing Operator, etc.) on two (2)

        occasions within a period of one (1) year, will not be

        allowed to make application to qualify thereon again for a

        period of one (1) year from the date of their second failure.

        In "any case, after receiving notice of failure to qualify,

        employees will vacate the position on which disqualified

        and return to their former position provided it has not been

        acquired by a senior employee or abolished, in which event

        the disqualified employees may exercise seniority pursuant

        to Rule 21. Prompt written notice of the disqualification

        will be issued to the employee involved.


RULE 17- SENIORITY ROSTERS
    (a) Seniority rosters will be revised as of January 1 each year.

        Each employee retaining seniority on any Maintenance of

        Way seniority roster(s) as of January 15" will be advised, in

        writing on or before January 10'hof the seniority date(s)

        retained on the respective seniority roster(s). In addition, a

        complete set of rosters reflecting additions and deletions for

        the previous year and a complete set of rosters reflecting all

        entries as of January IS` will be furnished to the General

        Chairman, System officers, local chairmen and local

        supervision on or before January 10"'.


RULE 1$- EXERCISE OF SENIORITY
    (a) Except as otherwise provided in this Agreement, seniority


                    4

                                      PLB No. 7100

                                      Award 15


          rights of employees maybe exercised only to vacancies or new positions in their seniority classes and districts or in reduction in force in accordance with Rule 21.


RULE 19- PROMOTION
      (a) Promotion will be based on ability, qualifications and

        capacity for greater responsibility and where these

        requirements are sufficient, seniority will prevail.


RULE 21- REDUCTION IN FORCE
      (e) When forces are reduced or positions abolished, seniority

        will govern, and employees affected thereby may displace

        junior employees in any seniority class in which seniority

        and qualifications are held. Employees must exercise

        seniority within fifteen (15) days from the date of the

        displacement unless extension of time is agreed to by the

        designated Carrier Officer and the General Chairman.

        Identification of the position to which the displaced

        employee intends to exercise displacement rights must also

        be given by phone to the appropriate company

        representative in Non-op Personnel Services.


    (h) Displaced employees will not be allowed to exercise

      seniority to fill positions for which they have not

      established qualifications previously.


RULE 22- RETENTION OF SENIORITY
      (a) Unless otherwise agreed to by the designated Carrier Officer and the General Chairman, an employee who applies for and


                    5

                                          PLB No. 7100

                                          Award 15


          accepts a bulletined assignment in another class to establish seniority or qualifications will remain in the assignment involvement for a period of not less than thirty (30) working days except in those instances where the employee is disqualified; recalled to a higher class; or the position is abolished or acquired by a senior employee in the exercise of displacement rights in which event the employee may exercise seniority pursuant to Rule 21. Bids will not be accepted from employees who are working in a lower classification pursuant to Rule 22(a) until the thirty (30) working days period has expired.


The Organization asserts pursuant to Rule 19(a) of the Agreement Carrier found Claimant has "ability, qualifications and capacity" when it granted his seniority in the STRI position back to August 16, 1991. Further, the Organization argues pursuant to Rule 15(c) Carrier failed to disqualify him with thirty (30) days of his August 16, 1991. Therefore, according to the Organization, Claimant has clearly demonstrated his ability and qualifications since 1991. In addition, the Organization argues Claimant was fully qualified for the position until Carrier implemented the GPS system and the new technology which Claimant is unable to use. It claims Carrier had two (2) years to train all employees holding seniority in the STRI position on how to use the computer Tie Spot Repository and the functions of the GPS system. The Organization also asserts Carrier continued to deny Claimant the opportunity to train and to acquire the skills in question even after Claimant requested training by letter dated May 24. In these circumstances, it contends, Carrier cannot deprive a fully qualified employee from exercising his seniority rights.

                        6

                                          PLB No. 7100 Award 15


The Organization asserts Rule 21(e) protects Claimant's rights, as a senior employee, to replace D. Kruse. Rule 21 (e) provides when positions are abolished "seniority will govern, and employees affected thereby may displace junior employees in any seniority class in which seniority and qualifications are held."
 Carrier, on the other hand, argues Rules 19, 20 and 21 of the Agreement all required an employee to be qualified to perform the duties of the position prior to displacing a junior employee for a position. Carrier asserts the ability to use the GPS system and other computer applications are essential skills required for the STRF position. It also argues it is uncontested Claimant never worked as a STRI and is not able to use the GPS and other computer applications required to do the job. According to Carrier, Claimant was not given the training opportunity to learn the GPS system, the Tie Spot Repository or other computer applications because he never worked on the STRI position. The training was offered to employees who were assigned and worked as STRI. If Claimant had worked in the position, he would have been given the opportunity the training opportunity in accordance with Rule 22(a) of the Agreement. Essentially, Carrier contends, it determined Claimant did not possess the required skills to qualify for the STRI position because he was unable to use the GPS system and other computer programs. For all the foregoing reasons, Carrier asks the Board to dismiss the claim in its entirety.
 After reviewing the record facts, the Board finds the grievance must be denied. Essentially, the Organization asserts Rule 21 (e) protects the rights of a senior employee during a work force reduction and when a position is abolished and it is undisputed

                        7

PL13 No. 7100 Award 15
Claimant is senior to Kruse, The clear and unambiguous language of Rule 21 (e) provides "when forces are reduced and positions are abolished, seniority will govern, and employees affected may displace junior employees in any seniority class in which seniority and qualifications are held." It is uncontested Claimant was unable to use the GPS system and other computer applications required for the STRI position. Similarly, it is undisputed he never worked as a STRI and thus, was never trained to use the GPS system and computer programs when it was offered to the employees who worked as STRI. The Board finds the record evidence is sufficient for Carrier to have decided Claimant was not qualified for the STRI position. Further, in this case, a review of the record does not support the conclusion Carrier was contractually required to provide Claimant with the training in question in order for him qualify for the position. Accordingly, the Claim is denied.

          AWARD


Martin F. Sc einman, Esq. Chairman

N tral Member


Claim denied.

0 ct,


Carrier Member

 B.th.h..d C- 35-d

 Orga zation Member