As a consequence of the violation referred to in Part (1) above, Claimant B. Prophet shall now be paid for fifty-five (55) hours at his respective time and one-half rate of pay."
Form 1 Award No. 41051This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
The facts indicate that during the period of April 24 through 30, 2008, the Carrier required the overtime services of an employee to assist another employee on the Oregon Division. At the time of the incident, the Claimant was assigned to System Gang 8500 as a Laborer. System Gang 8500 was working a "T-1" alternate work period schedule with accumulating rest days, which resulted in the aforementioned time period becoming the Claimant's rest days.
It is the position of the Organization that the Carrier failed to call the Claimant to perform overtime service between April 24 and April 30, and instead called and assigned junior employee D. Grant. It argued that the Claimant was readily available, fully qualified, and willing to perform the overtime service if he had been called. It asserted that before going on his rest days, he advised the Carrier to call him if any overtime arose and verified that his cell phone number was on tile. It concluded by requesting that the claim be sustained as presented.
It is the Carrier's position that the System Gang Managers announced the need for scheduled overtime to be worked during the rest period in question and Grant was the senior qualified employee who expressed a desire to work the overtime required. According to the Carrier, the Claimant did not elect to perform overtime service, because he did not volunteer for the work. It also alleged that historically the Claimant has always turned down overtime and this claim smacks of "laying behind the log," which has not been an acceptable premise by arbitrators. It closed by asking that the claim remain denied.
The Board thoroughly reviewed the record and is not persuaded by the Carrier's argument that this dispute involves the classic example of a Claimant "laying behind the log" with the hope of gaining compensation based upon the allegation that he was not called. Whether the Claimant may have always turned down overtime in the past is immaterial, because his seniority affords him the right to be called for all eligible overtime, after which it is his decision to decide whether Form 1 Award No. 41051
he wants to work or not work. Accordingly, the Claimant's past work history played no part in resolving this matter.
Instead, the resolution of this case comes down to its on-property handling and the statements of the principle parties to the incident. The Organization asserted that the Claimant made it known to his superiors that he would be available for any overtime that arose during his rest period, and offered as support of its position, a statement from the Claimant which stated, in pertinent part, the following:
In rebuttal on the property the Carrier asserted that prior to System Gang $500 observing its rest days (April 24 through April 30) Carrier Supervisors announced to the entire gang the need for scheduled overtime to be worked during the rest period and the Claimant failed to express any desire to work the overtime offered, whereas employee Grant was the senior qualified employee who expressed a desire to work the overtime required. To bolster its position, the Carrier offered a statement from Supervisor Widup who wrote, in pertinent part, the following:
The dispute comes down to conflicting statements. The Claimant stated that he told someone that he was interested in working overtime. If that statement had set forth the name of that person, the instant claim may have had a different outcome. On the other hand, the Claimant's Supervisor states that the Claimant told no one that he wanted to work and, according to the Carrier, if he had "spoken up" he would have been used for the overtime. In a similar dispute involving contradictory statements Third Division Award 33$95 held, in pertinent part, as follows: Form 1 Award No. 41051