THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Section Laborer E. D. Quintana is senior to Section Laborers Alfredo G. Garcia and Henry Teixeira and they are all regularly assigned to the section gang at Littleton, Colorado, with an assigned work week extending from Monday through Friday (Saturdays and Sundays are rest days).
On Saturday, September 24, 1966, Section Laborers Alfredo Garcia and Henry Teixeira were used to perform eight (8) hours of overtime work but no effort was made to call and use senior section laborer E. D. Quintana. The claimant, was available, willing and qualified to have performed this overtime work and Section Foreman Tom Nidig was fully aware of the claimant's availability and that his vacation had ended on Friday, September 23, 1966.
Claim was timely and properly presented by the Employes at all stages of appeal up to and including the Carrier's highest appellate officer.
The Agreement in effect between the two parties to this dispute dated February 1, 1941, together with supplements, amendments and interpretations thereto is by reference made a part of this Statement of Facts.
CARRIER'S STATEMENT OF FACTS: Mr. E. D. Quintana, Section Laborer at Littleton, Colorado, began a one week vacation on Monday, September 19, 1966, and reported back to work on Monday, September 26, 1966.
OPINION OF BOARD: Section Laborer E. D. Quintana, regularly assigned to a gang at Littleton, Colorado, began a one week vacation on Monday, September 19, 1966. On Saturday, September 24, 1966, Carrier called two junior Section Laborers to perform work.
Mr. Quintana makes claim that as the available, willing, and qualified senior employe, he should have been called to perform this overtime work. He maintains that the Foreman was aware of his availability since his scheduled vacation ended on Friday, September 23rd, 1966, and his regular work week did not begin until Monday, September 26, 1966, because of his Saturday and Sunday assigned rest days. He supports his position with the Note to Rule 111/2 of the effective Agreement which provides that overtime work will be given to the senior employe working on the gang handling the work in question.
Carrier takes the position that it had never been the practice to call an employe for work on his rest days following his vacation unless the employe had notified the Foreman that he was available.
The record as handled on the property clearly shows that employes may upon making their availability known to their Foreman be considered available for "call" on rest days following their vacation.
The burden of proof rests upon the employe to make his availability known; in the instant dispute, as handled on the property, we find no competent evidence submitted by Claimant to his Foreman indicating his availability for work on the date here involved. We must for this lack of evidence deny the instant claim.