At all times pertinent to this case, L. Vern ace-McColgan ("Claimant") was employed by PATH as a Signal Tester I. As such, she was covered by the terms of the governing Memorandum Agreement between PATH and the Brotherhood of Railroad Signalmen; specifically including the following:
(Although the above-quoted language does not specify priority for overtime assignment by seniority, the record shows that seniority and "overtime equalization" are, by mutually recognized practice, the benchmarks for determining overtime preference.)
In this case, the Claimant maintains that her seniority rights were violated on September 11, 1999 when the Carrier called and assigned a junior Signal Tester I employee to perform certain overtime work, described as "searching out an apparent grounded energy circuit found on a cable between Hoban Relay Room in Journal Square and uptown 33rd Street." The Claimant and the Organization made out a prima facie case by demonstrating that the Carrier by-passed her in calling a junior employee for the overtime. A legion of Awards by the Board stand for the principle that, absent compelling reasons, e.g. illegality, disability, unavailability, impossibility or bona fide emergency, the senior employee Form 1 Award No. 36623
presumptively is entitled to right of first refusal for overtime assignments. See Third Division Awards 30833, 33909, 19758 and 5346.
That presumption is rebuttable, however, and in the facts and circumstances of this case we find that the Carrier made out a persuasive affirmative defense to the claimed violation. It is not disputed that the Claimant was absent from work due to illness for three months from March to May 1999. Her return to "light duty" work on May 6, 1999 was conditioned on specified medical restrictions i.e., no lifting heavier than 25 pounds, no overhead work and no climbing except by ladder. Those medical restrictions on her ability to perform the full range of Signal Tester I duties were still in effect on September 11, 1999 when she stood for the overtime call which is the genesis of this claim. Indeed, the record shows that the Claimant had expressed concerns to her supervisors on September 2, 1999 that, due to medical restrictions, she should not be expected to perform certain tasks that would otherwise be required of a Signal Tester I, including lifting heavy objects.
With the benefit of hindsight, the Claimant asserts that the duties actually performed by the junior employee on the night of September 11, 1999 were within the limits of her medical restrictions. Assuming, arguendo, that the Carrier could have determined with a reasonable degree of certainty before the fact that the overtime work necessary on September 11, 1999 was within the Claimant's medically limited performance capacity, her seniority should have been determinative. But clairvoyance is not required in such matters and the Carrier persuasively demonstrated in this record that climbing and testing relays, energy busses, cables, wires, terminals and other devices located above the head were reasonably anticipated tasks in the performance of the overtime assignment for which the Claimant was by-passed on September 11, 1999.
In the particular facts and circumstances presented on this record, we find no violation of the Claimant's seniority rights under the Agreement. Accordingly, we must deny this claim.