On July 31, 1997, the Organization filed the instant claim on behalf of Claimant Goosby. The claim alleged that, on July 19, 1997, the Carrier assigned D. M. Foley, an employee junior to the Claimant, to perform overtime work which involved the greasing of certain equipment headquartered at Bridgewater, Pennsylvania. The Organization contended that Foley, who worked the overtime with his brother, a Repairman, was junior to the Claimant and was not entitled to the overtime under the provisions of Rule 17 which provides:
The Organization contends that both the Claimant and employee Foley ordinarily and customarily perform work as Machine Operators. All other things being equal, the Claimant's seniority entitled him to preference over employee Foley, the Organization argues.
The Carrier asserts that the Claimant and employee Foley were not equally qualified to perform the disputed overtime work and therefore the Claimant's greater seniority was not controlling under Rule 17. In its September 23,1997 response to the claim, the Carrier maintained that the work required a qualified Torsion Beam Operator to assist in finding an electrical problem and to operate the switch lifter controls. The Claimant was not qualified to operate the equipment, the Carrier submits, and therefore the claim was properly denied.
During the on-property handling of the dispute, the Organization requested evidence showing that Foley was qualified on the equipment. An August 28,1997 memo from Supervisor D. Lamont responded to the request as follows:
Nearly a year later, on July 21,1998, the Claimant submitted a statement alleging that the equipment being repaired was a junior tamper and not a torsion beam tamper as the Carrier had asserted. Moreover, the Claimant stated that Foley did not have a bid position, having been bumped off his position as Yard Sweeper by the Claimant. Under these circumstances, Foley should not have been permitted to work the disputed overtime, the Organization contends.
The Carrier objected to the acceptance of the Claimant's statement as part of the record of correspondence from the Organization because it was not submitted until after the Senior Director's denial letter following conference, contending that the record was closed when the letter was issued. That position has been rejected in prior Awards. The generally accepted view is that the Board may properly consider any document presented on the property prior to the date of the Notice of Intent to file a dispute with the Board. Third Division Awards 20773 and 33998.
The Carrier also asserted that the burden of proof in this case was on the Organization to show a violation of the applicable schedule Agreement, and inasmuch as there is no factual support for the asserted violation, the Carrier submits that the claim must be denied.
The Carrier's position with respect to the deficiency of the claim is well-taken. The key to this dispute are the facts with respect to the qualifications of the Claimant and the junior employee, Foley. Under the provisions of Rule 17, seniority does not play a factor unless both employees are qualified and available to perform the overtime. The Carrier insists that the Claimant's seniority was not determinative because he was not qualified on the torsion beam tamper, and in support thereof, it provided a signed statement. The Organization argues that the Carrier is incorrect and that the Claimant was qualified to do the work. As we view the record, however, the evidence in support of the Organization's position is insufficient and contradictory at best. The Claimant's belated assertion that a junior tamper had been utilized, the failure of the Organization to provide more than mere assertion that the Claimant was qualified to perform the work, the unsupported claim that favoritism or bias played a factor in the selection, and the inconsistent position taken by the Organization with respect to whether junior Form I Award No. 35741