C:\MYDOCU~1\SCHEDU~2\3-29418.htm

Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29418 THIRD DIVISION Docket No. MW-28312 92-3-88-3-69 The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered. (Brothernood of Maintenance of Way Employes PARTIES TO DISPUTE:

(Southern Pacific Transportation Company (Eastern Lines)

STATEMENT OF CLAIM: 'C:ai:n o: the System Committee of the Brotherhood that: (1) T:^.e Carrier vitiated the Agreement when it called junior Track Laborer W. G. vc~zuirr- ;n,tead of Track Laborer A. R. Paul for service on Extra Gang T-72 dc Avo~ioaLe, ;.ouisiana on January 5, 6, 7, 8 and 9, 1987 (System File u'W-97-397461-28-A). (Z) =r3c< Laborer A. R. Paul shall be allowed forty (40) hours of pay at his pro rata rare 25 a consequence of the violation referred to above." FINDINGS: The Third Division o: 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 employes within the meaning of the Railway Labor Ac: as a?proved June 21, 1934. This Division of the Adjustment Board has jurisdiction over the dispute involvec herein.

Parties to said dispute waived right of appearance at hearing thereon.

This dispute concerns the reasons for the recall of a junior employee rather than Claimant on the dates set forth in the Claim. At the relevant time, Claimant, a Track Laborer, held greater seniority than the Track Laborer who was called. The parties agr-a -nat recalls for short-term positions are accomplished by phone. However, the of the facts surrounding this Claim. According to the Carrier:

Cn ,;anu.iry 1, 1987, Mr. A. R. Paul was recalled to ~ervtce to relieve on System Extra Gang 72 via telec'-~,c >ut ,!iere was no answer. Labor Clerk D. H. Rusnmade several attempts to notify Mr. Paul that he was oeiag recalled to service. Again, on January 5,

Form 1 Award No. 29418 Page 2 Docket No. MW-28312 82-3-88-3-69 1987, Mr. Rush attempted to contact Mr. Paul and again _'ailed to get an answer. Finally on Tuesday, January 6, 1987, Mr. Rush was able to make contact with Mr. Paul and was advised that he was being re called to service and to report to System Extra Gang

72.

·'..-.

Paul stated he had something to take care of

and wouid report » January 12, 1987. In the mean

time, ~r. Rush sent System Track Laborer V.G.

Yzagui7re [sic] to relieve on said position account

System Track Laborer A. R. Paul failed to respond to

his r=_3il and protect his assignment in a timely

manner.'

According t) the )riza nization's view of the facts:

"Duricg the conference... [y]ou were also advised and lurnis:ied '.etiers from the claimant stating he had not peen ca11e;, and he also states he did in fact re'urn to du:v as soon as he was advised.

Mr. Paul sLearly states he was not contacted by Mr. ;·j;h and also states Mr. Push was upset about this ::aim 4hich -ould indicate that Mr. Rush did in fact Earl t) call ?r. Paul in seniority order."

The Organlzstion bears the burden in this matter. The parties agree that for short-term recalls, :se of the phone is appropriate. But, at best, there is a conflict over whether, in fact, Claimant was called. Given that conflict, and not Ding able to resolve which version is the more credible, we cannot say that :he ~>rganizat_on carried its burden. See Third Division Award 21423:

" »rrier asserts that Claimant was called by teleonane on the two dates involved but he failed to answer the telephone. The Claimant contends that he was a: home and available but the telephone calls from tr.e Carrier never came.

Obviously, at this level, the Board has no way of resoling evidentiary conflicts. We have neither the author_ty nor the competence to resolve such conflicts in the evidence of record."

See also, Third piYision Awards 27824, 25833, 18871, Second Division Awards 11363, 10946. Form 1 Award No. 29418 Page 3 Docket No. MW-28312 82-3-88-3-69 The Organization's reliance upon the quoted letter of Claimant dated May 21, 1987, denying that he was called does not change the result. First, although quoted is the organization's Submission, that specific letter was not made part of the record developed on the property and attached to the parties' Submissions. Second, even if this Board could consider that specific letter (and giving the irganization the benefit of the doubt because on the property the Organization lid nake reference to the furnishing of letters from Claimant), we would not ,hAnge Claimant's denial .)f teeing ,;lied as specified by the letter was unchallenged by the Carrier. However, the sequence of events shows that on May 19, 1987, the Carrier infor~ed the Organization that "we have obtained the following regarding recall Dr `tr. Paul" ind quoted the Carrier's evidence conceritag the facts as set forth above, =oecifically that Claimant was called by the %abor Clerk. In response :) the ~:arrier's statement of the facts, Claimant then wrote his letter o-. ~iav -'I, L?87 (which the date stamp indicates was not received by the Organi=anon vntLl June 3, 1987) as set forth in the organization's Submission. T!iiu statement of fact that -em.i:ned unrefuted. Rather, Claimant's- assertion was _in response to the Cirrier's factual assertion. Therefore, even if we could consider Claimant's ,pect;ic letter, when all is said and done, a conflict in the evidence remails. Claimant says he was not called and the Carrier says he was called. Because o· that conflict (which we are unable to resolve), under the governing authoritv, t:ne Organization has not carried its burden.

We must therefore denv the Claim.

A, W A R D

Claim de,ied. NATIONAL RAILROAD ADJUSTMENT ISOARD By Order of Third Division Attest: I Nancy J.,"Ier - Executive Secretary Dated at Chicago, Illinois, t-iis 21st day of October 1992.