Upon the whole record and on the evidence, the Board finds that the parties herein are Carrier and Employer within the meaning of the Railway Labor Act, as amended; that this Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.
The Organization contends that the Claimant was not offered the duty on overtime of following behind rail grinding trains in a hy-rail vehicle in order to put out fires that may occur. The employee who did that work was junior to the Claimant. The Claimant was readily available and fully qualified to perform the work. The Claimant's statement of September 17, 2008 is offered as evidence that he was not "asked to work any position concerning rail grinder" on the dates at issue.
According to the Organization, the Carrier's defense that it offered the disputed overtime work assignment to the Claimant and that the
statement offered by the Carrier is an unsigned email document which other Boards have found to be "insufficient direct evidence to overcome the Organization's prima facie case."
The Carrier asserts that the only issue in this case is "whether the employee was offered the work at issue." It maintains the Claimant was given the right of first refusal. It offers the Claimant's supervisor's statement that he offered the Claimant the work and he refused it. The Carrier also points to records that show that the Claimant worked 69.75 hours of overtime during the period in question. If he is entitled to any remedy it should be limited to 119.75 hours.
As Referee Wallin pointed out in a similar case on this property, we "are confronted with a conflict of material fact that was not resolved in the on-property record: Did the Claimant decline, or did he not decline, the overtime opportunity." We must agree with that Board's conclusion: given "such irreconcilable conflicts of material fact, we have no choice but to declare that the Organization's burden of proof has not been satisfied." (NRAB Third Division Award 39026).