File 900131


Parties Brotherhood of Maintenance of Way Employes
 to and
 Dispute Union Pacific Railroad Company
 (Former Missouri Pacific Railroad

 Statement
 of Claim: (1) Carrier violated the Agreement, especially Rules 1
 and 2, the Memorandum Agreement of September 1, 1963 and the
 letter of understanding of October 8, 1986, when Trackman
 Driver T. E. Ross, Sr. was not allowed to exercise his
 seniority.

        (2) Claim in behalf of Mr. Ross for difference in pay beginning November 1, 1989, until allowed to exercise his seniority.


        Findings: The Board has jurisdiction of this case by reason of the parties Agreement establishing this Board therefor.


        The Carrier in the mid 1980 's commenced upgrading its truck fleet on the former MOP by placing heavy duty trucks with booms on its maintenance and construction gangs.


        The Carrier in late 1986-1987 then instituted a structured crane training program on the care and operation of boom cranes on its vehicles because of the high amount of accidents and damage to vehicles, equipment and material. Such training was open to any and all employees.


        The instant dispute was created by the following claim filed on December 13, 1989.


        "I am presenting a time claim, and grievance by and in behalf of the below listed employees, who retains seniority on the Louisiana division:


        T. E. Ross, Sr. 435-74-7697 Trackman Driver


        'On Tuesday, October 31, 1989, claimant was cut-off his assigned position on Gang 1674, at Monticello, Arkansas. Prior to being cut-off while at a Safety Meeting in the vicinity of Monroe, Louisiana, claimant informed MTM Jackie Graham of his intentions to displace Trackman Driver Newsome on Gang 1601, at Bonita, Louisiana, on Wednesday, November 1, 1989. MTM Graham informed claimant that he could not displace the Trackman Driver on Gang 1601, contending he was was (sic) not qualified to operate the boom on the truck.

                  -2- Award No. 481


As a result of the above, claimant traveled to Pine Bluff, Arkansas, and exercised his seniority as a Trackman on Gang

1046.

 As a result of being denied said displacement claimant had
 to travel an additional 110 miles one way to exercise his
 seniority. The actions by MTM Graham were without A reement
 support, as outTin d under the Memorandum 11 reemen~

 September 1, 1~,_ which established the 'Trackman the Letter of LFnderstanding dated October 8, 1986,
 signeA-pj former Director of Labor Relation. Shannon,
 and BMWE General- Chairman -1-.. Borden. I call you
 attention to the lan ua a contained within each, whereas the
 only. requirement t~ said position is to have a valid
 chauffeur's license -Tor the state in question. Nowhere,
 within these Agreements is there any language which mandates
 that an employee must be qualified on the operation of a
 boom, before being considered for the position of Trackman
 Driver. Even if there was, an employee can operate a boom
 truck. No special skills are required. It is obvious the
 carrier is using the word qualified as a tool to pick and
 choose who they want for these positions, with total
 disregard for the employees seniority.

It is our contention that certain rules of our current Working Agreement have been violated, especially, Seniority Rights Rule (2), Memorandum Agreement of September 1, 1963, and the Letter of Understanding Dated October 8, 1986.


Therefore, based on the above, time is being claimed by and in behalf of claimant for the difference in rate of pay for Trackman to Trackman Driver, for 40 hours per week, and full payment of all overtime and holiday pay, as well as mileage at 24 cents per mile, for a round trip total of 220 miles per week, for the additional travel, from November 1, 1989, to continue thereafter, until allowed to exercise his seniority as Trackman Driver on Gang 1601." (underscoring added)


    Carrier replied on April 30, 1990, denying the claim:


"Investigation into the facts surrounding your claim reveals Claimant had been working as a Trackman on Gang 1674 when it was cut off effective October 31, 1989. Claimant exercised his seniority on Gang 1046 at Pine Bluff, Arkansas as a Trackman on November 1, 1989. Carrier records also reveal that Claimant bid on a Trackman position on Gang 1719 and was assigned to that position December 29, 1989. Therefore, any liability would end at that time.

                  -3- Award No. 481


The Organization is Lai n the position that the only
 qualification for a rackman Driver-is that he possess a
 valid chauffeu s license. While Claimant is hy-rail
 qualified,~e is- no qualified on the crane and was not
 allowed to displace Mr. Newsome, who was crane qualified.
 This position was for a truck driver and the truck driver
 needed to operate the crane which was on the truck.
 Therefore, in accordance with Rule 10, Mr. Newsome was
 assigned to the position.

 Rule 10 clearly states that management is to be the 'u~ dge of
 mess and ability. In this case Mr. newsome possessed the
 fitness and ability, whereas CSaimant did not. As you are
 aware, the Organization and Claimant must demonstrate that
 he had the necessary ability and qualifications to perform
 the duties required. There is nothing in your letter which
 indicates he was qualified. A mere statement that Claimant
 was qualified cannot be considered proof.

With regard to the Organization's request for mileage, there is nothing contained in the Rules cited which provide that the Carrier will compensate an employee for mileage under the circumstances outlined. Therefore, your claim must be considered excessive.


In your letter you contend that the Carrier has violated certain provisions of the Agreement, and we have again reviewed the language contained therein; however, based on the information contained in your correspondence there is absolutely nothing found to support your contention. This claim has been progressed without ample substance and must obviously fail since a claim based merely on allegation cannot stand. The relief you seek is not clearly supported by a bona fide violation of the Agreement, and you have not recognized your burden to prove your allegations. Since we find no basis to your contentions, this claim is respectfully declined in its entirety for lack of merit and Agreement support." (underscoring added)


The Carrier, after final conference, denied the claim by replying in part:


"During the claim conference at Omaha, Nebraska on June 7,
 1990 this case was discussed during which time we reviewed
 our respective positions. As a result of our conference, I
 indicated to you that the claimant did not ossess the
 ~necessar ualif-cations and therefore Rule 2 not
 violate . Claimant has agent of opportunity to attend
 sct-ooTs and become ug~a'f_if~i_~_ttached, you will find a
 i~ dates scho-oTs haves presented. As you are aware
 Crane Training was implemented several years ago due to the
            -4- Award No. 481


number of vehicles incurring benik bent booms, etc. and to protect the safety of our employees, our operation and the general public.


The Carrier is not unreasonable in this requirement and has the latitude to set qualifications on a position as long as they are not restricted by the Agreement. In this regard you are referred to Second Division Award 6760 which states in part:


'We frequently have held that Carrier has the right to assi n work and to determine content ~ ositions, except as striteTfX_ the express terms of the gre

Awards454,~, 12346, 13490, 13719 _eT_ al (Third
 Division). Likewise, we have upheld the propriety of
 Carrier tests to determine qualifications on ability, so
 long as they are fairly and reasonably applied in a
 nondiscriminatory manner. Awards 1118, 4214 (Second
 Division), 12461, 15002, 15493 (Third Division). In the
 instant case there is no evidence of discrimination or
 arbitrary, unreasonable or capricious activity by Carrier in
 assessing Claimant's qualifications.' (underscoring added)

The issue was thus joined. The Carrier perceived it to be one of judging an employee's qualifications for the position bumping onto as exemplified by this quote from Third Division Award 28600, dated October 13, 1990:


"...Whether an employee has sufficient fitness and ability to fill a position is a matter of judgment that is a managerial prerogative. Unless the Organization can prove that Carrier acted in an arbitrary, biased or prejudicial manner in evaluating the Claimant's competency, the decision of the Carrier must be final. See Third Division Awards 26595, 4040, 5966, 6054. It is also well-established that Carrier can require the employee to demonstrate fitness and ability by examination, and provided the test is fair, work related and other employees have been subject to the same requirements, the Board will not interfere with the Carrier's determination (See Public Law Board 2035, Award


The facts of this case, on first impression, appear to differ markedly from those in the Awards cited by the Carrier. The Board finds no quarrel with the general premise being articulated therein to the effect that unless specifically restricted by the Schedule Agreement, management is the sole judge of an employee's qualifications for skilled and semi-skilled positions.

a~

                              -5- Award No. 481


              The question raised is were the Trackman/Driver positions involved, i.e., the one with Gang 1674 at Monticello, Arkansas from which Claimant Ross was displaced and Trackman driver Newsome, Gang 1601 at Bonita, Louisiana the same? Or was it as the facts indicate that Ross was a displaced Trackman who simply possess a chauffeur's license and merely wanted to displace a junior Trackman/Driver? Ross was refused the displacement because he was not "boom" qualified on the new trucks.


              Carrier Exhibit A is apparently aimed at Crane Operators and "Astronauts." Nonetheless, since the Trackman/Drivers the crane qualification requirement has been in effect several years preceding the instant claim and since most, if not all, Trackmen/Drivers have qualified thereon and since Claimant willfully chose to not qualify then it is not unreasonable to conclude that such qualifications must be met before the Claimant is permitted to displace on Bonita's position.


              As soon as Claimant Ross can show that he is qualified to operate a truck crane, he can thereafter bid therefor. However, lacking such qualifications, which apparently was not protested, the denial of his displacement right is upheld.


        Award: Claim denied as per findings.


                          .00, kO 4j4

        S. A. Ha ons, Jr., E ee Member D. .Ring, Carr Member


                                              V


                            Arthur T. Van Wart, Chairman and Neutral Member


        Issued September 26, 1991.