Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42950 Docket No. MW-43569 18-3-NRAB-00003-160186

The Third Division consisted of the regular members and in addition Referee Sean J. Rogers when the award was rendered.

(Brotherhood of Maintenance of Way Employes Division - (IBT Rail Conference

PARTIES TO DISPUTE: (

(Dakota, Minnesota & Eastern Railroad Corporation

STATEMENT OF CLAIM:

"(1)The Agreement was violated when the Carrier failed to call and

assign New Albin Section Gang Assistant Foreman M. Farley to perform overtime work on September 6, 2014 but instead called and assigned adjacent section gang member thereto. (System File B-1415D-104/8-0029 DME).

(2) As a consequence of the violation referred to Part (1) above, Claimant M. Farley <***be compensated for four (4) total man hours of overtime as shown earlier in the claim, at the applicable rate of pay.' (Emphasis in original.)"

FINDINGS:

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.

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

This is an overtime dispute which arose on September 6, 2014 concerning the Carrier's failure to assign the Claimant to overtime service involving the cutting and removingof afallentreenear MilePost(MP)105 onthe MarquetteSubdivision within the New Albin Section Gang territory. The fallen tree caused an interruption to service and needed repaired in the timeliest manner possible. The Carrier determined that an employe was needed to perform the work as overtime service.

The Carrier's Roadmaster Tim Mayer called the Claimant who regularly performed the work on his company cell phone. The Claimant did not answer his company cell phone. Meyer called the next employe available to perform the work.

The record establishes that the Claimant left his company cell phone in his company truck. As a consequence, the Claimant missed Meyer's call for the overtime work. During the on property handling, the Claimant stated that Meyer called him at 3:20 p.m. when his company phone was in the company truck.

The grievance claim asserts that the Carrier violated Rule 15 - Overtime, which states in pertinent part:

"When operating requirements or other business needs cannot be met during regular working hours, employes will be given the opportunity to volunteer for overtime work assignments. Employes must receive their manager's prior authorization for all overtime work. Overtime will be distributed first to the employes who regularlyperform the work and, thereafter, as equitably as practical to all employes qualified and reasonably available to perform the required work."

The Organization asserts that the Carrier violated the collective agreement when it failed to assign the overtime work to the Claimant who regularlyperformsthe workon the New Albin Section Gang territory. The Organization argues the Claimant was entitled to the overtime work over the employe, from another territory, who was assignedthe MP105 tree removal.

The Organization asserts that the Carrier did not call the Claimant on his personal cell phone after there was no answer on his company cell phone. The Organization argues that it is unreasonable for the Carrier to have called the Claimant on his company cell phone only. The Organization claims that Carrier rules forbid employes from taking company cell phones home.

The Organization refutes the Carrier'sdefenses includingthat the treeremoval was an emergent situation. The Organization maintains the Carrier produced no evidence of a genuine emergency.

For these reasons, the Organization asserts the claim must be sustained and that the appropriate remedy is four hours pay at the overtime rate.

The Carrier asserts that employes take company cell phones with them after hours to be available to take calls for overtime work. The Carrier argues that there are no restrictions and no Carrier rule on carrying of a company cell phone at all times. The Carrier says its employes are issued company cell phones so that they can be readily available for overtime calls. In this instance, the Carrier argues the Claimant decided not to keep his company cell phone with him and thereby chose to make himselfunavailable for a call for overtime work. The Carrier asserts that it is not obligated to make multiple calls to find a particular employe.

The Carrier asserts that Meyer first called the Claimant to assign him the overtime work as required by Rule 15. When the Claimant failed to answer, Meyer moved on and assigned the overtime work to another employe in full compliance with Rule 15.

TheCarrieralsoassertsthis workwasatemporaryassignmentand one incident on an"asneeded"basis.Assuch,theCarrierargues, Rule1,subpart3. controlsandnot Rule 15.

The Carrier concludes the Organization has failed to prove a violation of the collective agreement and requests that the claim be denied.

This is a Rule 15 dispute of first impression and as such specifically refines employe obligations under the rule with regard to company cell phones.

The facts establish that Meyer complied with Rule 15 overtime work assignment requirements by first calling the Claimant, an employe "who regularly perform the work.

The call was made to the Claimant's company cell phone. The Claimant did not answer because he had left the cell phone in his company truck. It is unreasonable and counterintuitive for the Claimant to volunteer for overtime work and agree to carry a company cell phone. It is unreasonable as well, when the employe leaves behind the company cell phone in the company truck, only later to file a claim for overtime when the Carrier called the employe on the company cell phone but the employe did not answer. Itisalsounreasonableforthe Organizationandthe Claimant to expect the Carrier to make multiple calls when an employe has volunteered for overtime work and agrees to carry a company cell phone.

The Carrier specifically denies that it forbids employes from carrying the company cell phone home or with them at all times. Furthermore, there is no proof of the Organization's assertion that the Carrier forbids employes from carrying company cell phones when not working. Since the Claimant chose to leave behind the company cell phone, he cannot later claim he was not properly called for the overtime assignment. The facts establish he was properly called. He cannot later claim that the Carrier must make multiple calls to offer him the overtime work when the collective agreement does not require multiple efforts to reach him.

For all these reasons, the Organization has failed to meet its burden of proof that theCarrierviolatedRule15 inthis assignmentofovertimework. TheBoardmust deny the claim on the proven facts.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 14th day of February 2018.