Rule 55 Drovides:

"RULE 55 PREFERENCE FOR OVERTIME WORK

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for overtime work, including calls, on work ordinarily and

customarily performed by them, in order of their seniority."

In the handling on the property, the Carrier asserted that all Repairmen, including the Claimant, were offered the overtime ounortunitv. but oniv Douglas accepted the work. Statements provided by the- Organization from various employees corroborate the Carrier's assertion that the overtime was offered to certain employees. However, a statement from the Claimant specifically denies that

184 ··as V11414~ 48dKL Vpil~LUl11LJ' l tell VV'41'VJ 1 Vvas not as'--' LU VV V1~ VVG1L1111G. ,. Had the Carrier provided a similar statement from the individual making the overtime offers, the Board would have found that there was a dispute of a material fact necessary for the Organization to meet its burden and we would have dismissed the claim on that basis. However, aside from general statements in letters from the Carrier in the exchange of correspondence on the property, there is no evidence from the Carrier equivalent to the Claimant's denial in his statement that he was offered the overtime to refute the Claimant's denial. On that basis, the Board has no choice but to find, as a matter of fact, that while some employees were offered the overtime on the date in dispute, the Claimant was not offered that overtime. Based upon that fact, because the Claimant was senior to Douglas, the Claimant should

The Carrier's other arguments do not change the result.

properly certified for the required equipment while the Claimant was not. That fact would, in the ordinary case, bar the Organization from asserting that the Claimant was entitled to perform the work. Under that scenario, the Claimant would not have been "qualified" to perform the work under Rule 55. However, in a statement provided by Douglas, Douglas asserts that in performing the work ". . . I did not wear a respirator . . . because the material inside the gondola was just trash, tie butts, pallets, trash and some dirt . . . [t]his was not a hot .job." If the Carrier allowed Douglas to perform the work without wearing a respirator, the Carrier is estopped from now asserting that the Claimant could not perform the work because he was not certified for a respirator.

Second, the Carrier argues that the claim was procedurally defective because it was not filed with the appropriate Carrier officer as required by Rule 64(b) ("All claims or grievances must be presented . . . to the designated officer of AMTRAK authorized to receive same . . ."). The September 26, 2003 claim was submitted by the Organization to Division Engineer J. Guzzi. On October 24, 2003, Division Engineer Guzzi denied the claim, only addressing the merits and not asserting that the claim should have been filed with another Carrier officer. In its February 13, 2004 letter, the Carrier advised the Organization that "[a]ll claims and grievances concerning matters at the Roadway Equipment & Trucking Shop should be directed to Mr. P. F. Ketterer." In its June 21, 2004 letter, the Carrier advised the Organization that "[alc stinulated in the. Carrier'c latter dated .3annarv S2ff1A under the BM WE Northeast Corridor Agreement, the officer designated to handle first level claims or grievances involving the Road Equipment Shop is Mr. P. F. Ketterer, Shop Manager."

The problem here is that, from the Carrier's perspective, there is no evidence in this record that as of the filing of the claim dated September 26, 2003, Shop Manager Ketterer was the designated Carrier officer to receive claims. As established in the record, Ketterer was that individual as of January 5, 2004. However, nothing before us in the record proves that Ketterer held that designated position when the claim was filed in September 2003. Without more from the record develoued by the narties. we cannot find that the nruanization filed the claim with the wrong Carrier officer.

The Carrier's assertion during argument before the Board that the

V1~A111LAuuu YYaJ Auv1JGu AJ V119VVG11lVG1 /, GVVV L11aL Ji1Vp lvlallagul 11GLLGIG1 waJ the Carrier's designated officer to receive claims and had the Organization raised the issue on the property, the Carrier would have made that demonstration, also does not change the result. The issue was not for the Organization to raise. The Carrier raised the procedural issue that the Organization filed the claim with the wrong Carrier officer. That being the case, the Carrier had the burden to demonstrate all necessary elements supporting its position through evidence in this record that the Or-aanization was on notice Drior to filing the claim that its claim should have been filed with Shop Manager Ketterer rather than Division Engineer Guzzi. In the development of the record, the Carrier did not meet that burden. All the record tells us is that as of January 2004 the Organization was advised that Shop Ta------ rr_al_.._.. . ., t l._ a,.~:_..,.+.,.1 narra-r OFr--- .~ .. ..l,.u._, ex/., ..

AWARD