The Second Division consisted of the regular members and in
addition Referee Paul C. Dugan when award was rendered.
SYSTEM FEDERATION NO. 97, RAILWAY EMPLOYES'
DEPARTMENT, AFL-CIO (Electrical Workers)
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
(Coast lines)
EMPLOYES' STATEMENT OF FACTS: Mr. R. M. D'Arezzo, hereinafter referred to as the Claimant, is an hourly rated regularly employed, qualified electrician employed by the Atchison, Topeka and Santa Fe Railway Company, hereinafter referred to as the Carrier, in their Los Angeles Terminal Mechanical Department.
This dispute has been handled with the proper Carrier officers designated by the Company to handle such disputes, with the net results that all have denied the claim and refused to make any corrections and/or changes in the conditions which generated this dispute.
The Agreement effective August 1, 1945, as subsequently amended, is controlling.
POSITION OF EMPLOYES: At the Los Angeles Terminal of the Carrier there exists between the Employes and the Carrier, agreements and practices governing the distribution of overtime to the Electrical Workers at this location. These agreements and/or practices are predicated on and in 2ompliance with Rule 10(b) of the General Agreement effective August 1, 1945, as amended.
to which the carrier can only say its record set forth hereinabove proves the calls were made and the telephones did ring several times. It cannot say why these individuals did not respond to the telephone. Apropos thereto, please see that par:: of First Division Award No. 18406, reading:
The Board's attention is directed to the fact that Item 2 of the EKxn ployes' claim seeks payment of the penalty at the overtime rate of pay, which is contrary to the firmly established principle of all Divisions of the National Railroad Adjustment Board that the proper compensation for time not worked is at the pro rata rate.
The Carrier is uninformed concerning the argument the Employes may advance in their ex parte submission, and accordingly reserves the right to submit such additional facts, evidence or argument as it may conclude are necessary in reply to the Employes' ex parte submission or any subsequent argument or briefs presented by the Employes in this dispute.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute nvolved herein.
The issue involved herein is whether or not Carrier called Claimant in. onnection with overtime work.
The position of the Employes is that Rule 10(b) of the Agreement, equires that there be an equal distribution of overtime for Electrical Workrs at the Carrier's Los Angeles Terminal; that Carrier should have called'. 'laimant inasmuch as he had the least number of overtime hours on the ate in question, having 1684.1 hours of overtime as compared to 2518.1 hours. Dr M. R. Fenily, who was called by Carrier to perform the work. The petiioners submitted an affidavit signed by him and his wife stating that the ~lephone did not ring at his home on the date in question.
The Carrier contends that it consulted the list of Employes showing the - mount of overtime worked and called in proper order, seven men, includig Claimant, ahead of Mr. Fenily, but that each of these seven Employes ther refused to work, or that there was no answer; that the Claimant herein as third on the list, and that he failed to answer his home telephone after was permitted to ring on several occasions before the call was discontinued.
In this case we have the Carrier stating that efforts were made to call the Claimant, but that he did not answer his telephone; and the Employes state unequivocally that no call was made to Claimant. Thus, we have an irreconcilable dispute as to the facts before us. Aside from such assertions by either party, the record is lacking in evidence supporting both assertions. Under these circumstances, it is impossible to resolve this dispute. Absent proof, it must be held that the Carrier did not violate the Agreement and the Claim must, therefore, be denied.