Appendix "P" of the Agreement sets forth "a procedure for calling C&S Department employees for trouble involving maintainer's work outside their regular working hours." For those employees who place their name on the call list, the following procedure is followed:
Claimant is a Signal Maintainer headquartered at Trenton, Michigan with assigned work hours of 7:00 A.M. to 3:30 P.M. Claimant was also on the call list.
During his regular tour of duty on June 28, 1993, Claimant was dispatched at 2:30 P.M. for signal trouble. At 3:15 P.M., a trouble call came in concerning a track circuit malfunction. At 3:30 P.M., the Carrier dispatched Signal Maintainer V. Kalen to work on that malfunction. Kalen was junior to Claimant and behind Claimant on the call list. Kalen worked that trouble call until 6:10 P.M.
According to the Carrier, Claimant did not call in and mark off before the end of his tour at 3:30 P.M. According to the Organization, Claimant was not obligated to mark off before the end of his tour, but, in any event, prior to the end of his tour, Claimant did call in and mark off.
Later that evening, Claimant received a trouble call at 7:30 P.M., which he accepted. Claimant worked that trouble call until 8:20 P.M.
A violation of the call procedure has been demonstrated. Under paragraph 8. "Employees will be called . . . in the order in which their names appear on the list." Claimant was ahead of Kalen on the list and was not called. Form 1 Award No. 32749
The Carrier has failed to demonstrate that Claimant was not available for the call given to Kalen. It is not necessary to decide whether there is a Rule or practice requiring Claimant to mark off at the end of his tour. The Carrier's assertion that Claimant was not available for the call given to Kalen amounts to an affirmative defense. The Carrier therefore has the burden to demonstrate that Claimant was not available. The Carrier asserts that Claimant did not mark off. The Organization asserts the contrary. Because the burden to substantiate its affirmative defense is on the Carrier, and because this Board has no way in this record to resolve that conflict, the factual dispute must be resolved against the Carrier.
But more fundamentally, Paragraph 9 of the call procedure requires that "[a[ reasonable effort will be made to comply with the procedure outlined above." Carrier made no effort to ascertain Claimant's status prior to assigning the call to Kalen. See Third Division Award 31154 between the parties involving the same provisions (". . . [Tihere is nothing in the record to indicate that any effort was made to attempt to contact Claimant to ascertain his ability to perform the required work . . . ."). The Carrier's obligations under Paragraph 9 were not met.
We are therefore satisfied that the Organization has demonstrated that Claimant was deprived of a call to which he was entitled by Rule and was improperly deprived of the work opportunity given to Kalen. However, with respect to the remedy, we note that although Claimant was deprived of the work opportunity given to Kalen, Claimant worked a call later that day. The call worked by Claimant was of shorter duration than the earlier call worked by Kalen which Claimant should have received. The call Claimant worked was for 50 minutes. Kalen's call resulted in two hours and 40 minutes of work. To make Claimant whole, Claimant shall be entitled to pay for the difference between the calls at the appropriate contract rate.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.