Under Rule 55(a) the Claimants appear to have preference for the overtime over Trainees Casablanca and Kilgore for the overtime work on November 2, 2003. However, under Section III(c)(1) of the Electric Traction Department Training Agreement and consistent with the Organization's burden in this case, there must be some kind of showing by the Organization to demonstrate that Trainees Casablanca and Kilgore worked ". . . in lieu of a qualified mechanic . . . ." The Organization has not made that showing. On the date in question, in addition to Trainees Casablanca and Kilgore, five Electric Traction Linemen were assigned overtime on the project. There is no evidence presented by the Organization that during that overtime assignment, Trainees Casablanca and Kilgore worked ". . . in lieu of a qualified mechanic ...." [Emphasis added.]

Prior Awards between the parties relied upon by the Organization are distinguishable from this case. In Third Division Award 30686 ". . . the Carrier did not argue any contrary meaning as to the Trainee Agreement . . . [and specifically did not rebut the Organization's position that the Trainee was working `in lieu of a qualified mechanic."' Third Division Award 30686 (a sustaining Award) was ". . . virtually identical to that reviewed in Third Division Award 30685 and the Findings therein are incorporated here by reference." In Third Division Award 30685 (where it was concluded that ". . . the Board does not find the Carrier's action in Rule violation") the dispute was whether a junior Foreman who was assigned the overtime over the senior claimant in that case performed ". . . work ordinarily and customarily performed . . ." under Rule 55. The Board found in Third Division Award 30685 that °`. . . the phrase `ordinarily and customarily performed' refers to installation work and construction work . . . and more particularly to the project in

which the junior employee (and his Gang) was performing within the same workweek in which the overtime occurred." But the point of Third Division Award 30686 (which relied upon Third Division Award 30685) cited by the Organization is that ". . . the Carrier did not argue any contrary meaning as to the Trainee Agreement . . . [and s1pecifcally did not rebut the Organization's position that the Trainee was working `in lieu of a qualified mechanic."' Here, on the property, the Carrier did make that argument and showing. As described in its August 10, 2004 letter, the Carrier asserted that in addition to the fact that five Electric Traction Linemen were assigned overtime, the Trainees ". . . simply were assisting the gang to which they were assigned in order to become familiar with and understand the duties of the qualified Liueuren assigned to work off the Hudson Reconfiguration Project . . . ." Further, in that letter, the Carrier noted that "[clertain work performed by qualified Linemen can be performed only outside regular working hours when the power is shut off, and in order for the Trainees to become fully cognizant of all aspects of Linemen work, the Trainees are utilized in their training capacities on overtime, such as in the instant case, and said Trainees were not utilized in lieu of qualified Linemen as alleged by the Organization." In short, the Carrier argued and showed in this case what it did not properly argue or show in Third Division Award 36086.

Similarly, Third Division Award 35863 is not supportive of the Organization's position in this case because in that Award, ". . . the record on the property does not present any contrary interpretation of the `in lieu of language in the MOA than that asserted by the Organization or that found in Third Division Award 30686." Here, as discussed above, the Carrier made the argument and showing not made in those Awards. Further, in Third Division Award 35863, the Board noted that "[t]he Carrier failed to present any proof that Trainees were always assigned overtime when their gang was, despite the existence of qualified Mechanics within the territory." We have not decided this case on that argument. We have only found that the Organization failed to rebut the Carrier's on-property argument and showing that the Trainees were performing Trainee functions and were not working "in lieu of a qualified mechanic when qualifed mechanics are available on their advertised territory. . ." particularly given the fact that five Electric Traction Linemen were assigned overtime on the date in dispute.

Third Division Award 36239 cited by the Organization is clearly distinguishable because, in that case, two Linemen were assigned the overtime and one did not show up for the work. The Carrier then assigned a Trainee without canvassing for another qualified Lineman, causing the Board to conclude that "[hjaving shown that the Carrier predetermined the need for two Lineman on overtime for this assignment, its failure to seek another qualified Lineman to cover the absence violates Rule 55." That is not this case.

Likewise, Third Division Awards 37094 (which involved a dispute over whether the claimants therein were "available" or "qualified") and 37658 (which involved a dispute over whether the claimant therein was ". . . unfit to perform the assignment due to the number of hours he would have worked") are clearly inapplicable to this dispute.

Finally, the Organization cited prior denials of claims by the Carrier where Trainees were the claimants and were denied overtime opportunities, with the Carrier stating that "[ijt is Amtrak's policy when it comes to pre-determined overtime, the Carrier has to utilize all qualified employees in the work zone prior to utilizing the trainees." As explained by the Carrier on the property, in those cases the Carrier determined that additional qualified Linemen were needed on overtime and, therefore, Rule 55 and the Electric Traction Department Training Agreement dictated the use of qualified Linemen over Trainees. Here there is no evidence that more qualified Linemen were needed in addition to the qualified Linemen who were assigned the overtime.

The Board's denial of this specific claim does not have the result off granting Trainees "super-seniority" as argued by the Organization. The governing provision in the Electric Traction Department Training Agreement is clear: "Trainees will not work in lieu of a qualified mechanic when qualified mechanics are available on their advertised territory . . . ." Here there is no evidence that Trainees Casabianca and Kilgore were doing so on November 2, 2003. Based on the record presented, we can only conclude that during the overtime on November 2, 2003, Trainees Casabianca and Kilgore were only working as Trainees.

Based on the above, the Organization has not satisfied its burden of proof. The claim will therefore be denied.

AWARD