The Third Division consisted of the regularmembers and in addition Referee Robert M. O'Brien when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
On Sunday, April 25,1993, the Carrier experienced a derailment in Conway Yard. The Carrier called employee R. Thomas on overtime and assigned him to operate a front- Form 1 Award No. 35419
end loader to assist in clearing the derailment. Mr. Thomas worked eight hours of overtime on April 25, 1993.
The Organization contends that the Claimant should have been called for the overtime on April 25, 1993, since he is headquartered at Conway Yard and ordinarily and customarily operates Class 2 machines in the vicinity of Conway Yard in connection with track maintenance during his normal workweek. The Organization therefore filed a claim requesting that the Claimant be made whole for the overtime denied him on Sunday, April 25, 1993.
The Carrier asserts that Supervisor John Demeno called the Claimant for the overtime on April 25, 1993, but his call went unanswered. However, the Claimant submitted a statement in which he alleged that he was at home all day and evening on April 25, 1993, and did not receive a call for this service nor was any message left on his answering machine.
There is no evidence in the record to refute the Claimant's statement. Therefore, his claim that he was home all day and evening on Sunday, April 25, 1993, and received no call from the Carrier stands unrefuted. Inasmuch as the Claimant should have been called for this overtime in accordance with Rule 17 of the parties' Agreement the claim will be sustained as presented since the Carrier never took any exception to the remedy requested for the Claimant by the Organization.
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.