Form 1                 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43909 Docket No. MW-45140 20-3-NRAB-00003-180677

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when award was rendered.

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

PARTIES TO DISPUTE: (

(National Railroad Passenger Corporation (AMTRAK) (- Northeast Corridor

STATEMENT OF CLAIM:

“Claim of the System Committee of the Brotherhood that:

(1)The Agreement was violated when the Carrier failed to assign Mr.

J. Boothe to foreman overtime service performing snow duties on January 8, 2017 and instead assigned junior employe M. Willis (System File NEC-BMWE-SD-5543 AMT).

(2)     As a consequence of the violation referred to in Part (1) above, Claimant J. Boothe shall now be compensated for thirteen and onehalf (13 .5) hours at his overtime rate of pay.”

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.

The Claimant has established and holds seniority invariousclassificationswithin theCarrier’sMaintenanceofWay Department.Atthetimeofthisdispute,theClaimant was regularly assigned as a foreman to Gang S142. The Claimant’s Northern District foreman seniority date is September 16, 2012.

The Carrier determined it was necessary to assign a foreman to perform overtime snow duty work at the Providence Maintenance of Way base on January 8, 2017. The Claimant’s supervisor, Joseph Whelan, called the Claimant on January 7, 2017 at 8:30 AM on his Amtrak-provided cell phone for the January 8, 2017 overtime assignment to perform snow duty. This call to the Claimant went unanswered. Thereafter, the Carrier assigned employe M. Willis to perform the overtime snow duty work. Employe Willis’ Northern District foreman seniority date is July 10, 2016.

The Organization filed this claim on January 12, 2017, asserting the Carrier utilized junior employe Wills to perform snow duty Foreman work on January 8, 2017 and requesting that the Claimant receive 13.5 hours compensation at the overtime rate. The Carrier denied the claim on March 7, 2017, asserting that the Claimant was called, but the callwentunanswered. The partieswere unable to resolve the claimon-property, so it is now properly before this Board for final adjudication.

The Organization contends that the Carrier improperly failed to assign the Claimant to perform overtime work, but instead assigned a junior employe to perform the disputed work, in violation of Rule 55. The Organization points out that Rule 55 provides that “preference for overtime service shall be given to the senior qualified, available employe who customarily and ordinarily performs such work.”

The Organization contends that the on-property record demonstrates that the Claimant’ssupervisorfailedtocalltheClaimantatthephonenumberthattheClaimant had on record with the Carrier. The Organization contends that the supervisor’s log shows only the Claimant’s name, but not the number at which he was allegedly called. The Organization contends that the Claimant was qualified and available for overtime duty but was not afforded the opportunity to perform the disputed work.

The Carrier contends that Supervisor Whelan attempted to call the Claimant on his Carrier-provided cell phone, which the Claimant had advised was his preferred phonenumbertobecontactedforovertimework.TheCarriercontendsthatSupervisor WhelancalledtheClaimantonthispreferrednumber,buttheClaimantdidnotanswer. The Carrier contends that the contact sheet listing a different number for the Claimant cannot prevail over Supervisor Whelan’s testimony that the Claimant told him to use the Carrier-provided number. The Carrier contends that the Organization cannot demonstrate that the Claimant was available for snow duty on January 8, 2017.

The Organization’s claim relies upon assertions by the Claimant that his preferred contact number was the one listed on the contact sheet, but the Carrier’s supervisor provided a statement that the Claimant indicated that he preferred to be contacted by the Carrier-provided number. As an appellate forum, this Board is not able to reconcile the inconsistent statements. Without this evidence, the Organization cannot demonstrate that the Claimant was available, but the Carrier failed to call him. Under such circumstances, the Board must find that the Organization has failed to satisfy its burden of proof, and the claim must be denied.

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 28th day of January 2020.