The Third Division consisted of the regular members and in addition Referee Edwin H. Reno 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. Form 1 Award No. 38944
This claim results from the Claimant's assertion that a junior employee was called to work planned overtime (buffing rail due to black rail) on Sunday, November 2, 2003 instead of the Claimant.
According to the Carrier, the Claimant was not called to work overtime on Sunday, November 2, 2003 because the Claimant ". . . was asked by Supervisor Joe Routhier if he was available for overtime assignments on Friday and he declined." The Carrier interprets the Claimant's declination of overtime as one for the entire weekend - therefore including Sunday, November 2, 2003 for which claim is made in this case.
The Organization views the Claimant's declination of overtime as only for a particular assignment which was not for Sunday, November 2, 2003. According to the Organization, ". . . Mr. Barry did refuse to work the Rovers Job on that Saturday. At no time did he state he was unavailable for any other overtime."
The record is confusing and in conflict. The Board cannot tell from the assertions made by the parties in the correspondence on the property precisely what the Claimant stated and intended when he refused overtime. Was he refusing overtime for a particular assignment (as the Organization asserts) or was he refusing overtime for a particular period (as the Carrier asserts)?
But the burden is on the Organization to prove the essential elements of its claim. From what is in this record - i.e., conflicting assertions which are subject to interpretation - we cannot sufficiently determine what the Claimant actually meant when he declined to work overtime. Most significantly, the Board has nothing from the Claimant concerning what he said when he refused overtime. A record with facts in conflict and leaving assertions subject to interpretation such as this leaves the Board with no choice but to conclude that the Organization has not carried its burden. The claim will be denied on that basis. Given that conclusion, the Carrier's argument that the overtime work was the result of an emergency is moot. Form 1 Award No. 38944
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.