This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

The basic facts underlying the instant claim are not in dispute. The Claunant was assigned as a Work Equipment Operator (Vacuum Truck) on Surfacing Gang S-050, headquartered at Providence, Rhode Island, with a regular tour of duty of 10:00 P.M. - 6:30 A.M., Sunday through Thursday. The Claimant had greater seniority than K. Fisher, who was assigned as Foreman-I&R on Inspection and Repair Gang S-482, headquartered in Providence, with a regular tour of duty 7:00 A.M. - 3:30 P.M., Monday through Friday. The Claimant worked overtime on his rest days of Friday, March 24, 2007 from 10:00 P.M. to 7:00 A.M. and Saturday, March 25, 2007, from 10:00 P.M. to 8:00 AM. Fisher worked overtime on Saturday, March 25, 2007, from 7:00 A.M. to 6:00 P.M. The Claimant was not offered the opportunity to work the overtime that Fisher worked. All overtime involved operating the vacuum truck.

The Organization contends that the Carrier violated Rule 55(a) when it failed to offer the overtime to the Claimant because, unlike Fisher, the Claimant ordinarily and customarily operated the vacuum truck and because the Claimant had greater seniority than Fisher. Rule 55(a) provides:

"Employees will, if qualified and available, be given preference for overtime work, including calls, on work ordinarily and customarily performed by them, in order of seniority."

The Carrier denies violating Rule 55(a) arguing that the Claimant was not available to work the overtime that Fisher worked. The Carrier relies on regulations of the U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 49 C.F.R. § 395.2(a)(2) which prohibit permitting or requiring a driver to drive a property-carrying commercial motor vehicle for any period after the 14th hour after coming on duty following ten consecutive hours off duty. The Carrier urges that if it allowed the Claimant to work the overtime that Fisher worked, the Claimant would have operated the vacuum truck for 20 consecutive hours in violation of the federal regulation.

During handling on the property, the Organization asserted that the DOT regulation did not render the Claimant unavailable because it covered driving a vehicle on public roadways and the vacuum truck was operated on the rails. The Carrier responded that the vacuum truck was operated on public roadways between the MOW Base at Providence and Atwells where it was placed on the rails. We are thus faced with conflicting assertions, neither of which was backed by evidence. As the moving party, the Organization had the burden of proof. The Organization offered no evidence to prove that the truck was not operated on public roadways or that the DOT regulation did not render the Claimant unavailable to work the overtime worked by Fisher. Accordingly, the claim must be denied.