PUBLIC LAW BOARD N0. 4138
, Award .No. : 2 5~

 PARTIES TO DISPUTE
STATEMENT OF CLAII
Case No.: 25

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

And


CSX TRANSPORTATION,,INC.

 First: The Carrier violated the Agreement by calling junior employe Jeff Leighton instead of claimant,, Swann, the senior employe.

 Second: Claimant Swann be paid 16 hours overtime and 46 hours double time from 6:00 p.m. June 27; 1986 through 8:00 a.m. June

 30, 1986;

 FINDINGS
On June 27,' 1686, a major derailment occurred that inflicted extensive

 track.,dam3ge neaY"Vinpmont,~AlAama. The Carrier. called in all available

 ,employ" ~p ~ repai',r,1tFte damage ahd restore service

 Rule 30(b) provides:

 Employes, who desire to be considered for calls under Rule 31, will provide the. means by which they may be contacted,by telephone or otherwise _'and will register their telephone number with their
 for is a ry officer. 'Of."tho elso regis~ered,
calls will be made in seniority order as,the need arises.

 A reasonable~effort must.be'made to contact the senior'employe so registered, before proceeding to the next emplpye on the register. Except,for section men living~within hailing distance of either their foreman's living 'quarters or their tool house 'or headquarters station, and for men living in camp cars when they are present at the camp cars, an employe not registered a$ above,shall

 not have any claim on account of not beindworked on calls.

 On the date in question, Claimant was regularly assigned as a Ballast Regulator operator on Tie Gang SN76. June 27 was one of his regular rest days and. he was not 'on duty. There is no dispute' that Claimant was not.!, '.'i called in to work overtime to restore the track to operating condition., The

 Carrier4isserts that the reason Claimant was not called was .that Clalimantt

 had not given his phone number or registered for overtime 'as required by

 Rule 30(b). Claimant alleges that his phone number was on file with Foreman Fitzgerald,'the Rdadmaster and Assistant Roadmaster at Mt. Pleasant and the'

 Mt. Pleasant operator.

 In the course of progressing this claim, Foreman Fitzgerald submitted a

 handwritten note, dated September 30, 1986, stating that Fitzgerald did not have Claimant's phone number at the time he was trying to contact employes to work overtime. Foreman Fitzgerald is a contract employe. There are

 also two typewritten notes with Claimant's n2me'typed on them. One, dated December 8, 1986, states that Claimant's phone number has been registered with the Mt,. Pleasant operator for more 'than three years. .That statement includes a,statemen~ dated December 5, 1986, apparently from the Mt. Pleasant operator, that "Mr. Swann does have his phone number registered with me." ,The,other,'also typed, attached to an Organization letter dated
 October 1, 1986, states that Claimant gave his phone number to Fitzgerald on

 April l,'~1986.

 The issue to be resolved in this dispute is whether the Carrier violated the Agree~ent by not calling Claimant to work overtime to remedy the derailment; and if so, what should the remedy be.

 The position of the organization is that the Carrier has violated the Agreement by not calling Claimant to work on the derailment. The Organiza-

 tion contends that it has proved Claimant was registered with his foreman,

 his supervisor and the operator and therefore complied with Rule 30(b). Having done so, the Organization maintains, he should have been called to work the overtime. The Organization also asserts that Claimant has done'

 more than is required to comply with the rule because he has registered with the operator.

 The position of, the Carrier, is that it did not violate the Agreement.by not calling Claimant to work the derailment, because Claimant had not complied. with the, registration requirement. of Rule 30(b'). The, Carrier ,: _ contends tha,t FiC~ge`rald's statement is more 'credibl2' because it is'handwYitten (a~;'opposed"to the typed letters 'with Claimant's name typed on them) and because Fitzgerald:is'a contract employe and therefore lacks any

 motivation to act-'against a fellow;employe's interest. Finally, the

 Carrier 'maintains that since this is a -dispute involving members of the same

 class of employes, the claim should be dismissed.
 After review ~pf,..the entire record, the Board findsnthat the Carrier did;

 not violate the Agreement.

 The Organization has not sustained its burden o£ proving that, the Carrier violated the Agreement, because it has not,established by substantial credible evidence that Claimant was registered with his foreman or

 supervisor as required by Rule 30(b). The Organization may. have shpwn that

 Claimant had his phone number registered with the operator, although that is _

 only as of Decembet.,1986, not necessarily in June.

 Since there is no requirement of written notice in the rule, this comes down to a matter of the foreman's word against the Claimant's. In this matter, the foreman is not particularly persuasive. His statement; like Claimant's statements, is made substantially after the fact. The fact

 i

 that Claimant's statement is typed and Fitzgerald's is handwritten does not influence credibility in this matter, because it is pot significant or plausible that someone besides Claimant made the written statements at- ,

 tributed to him. It might even be sufficient that Claimant made a statement to someone else lind'that person typed the statement for him. Similarly, Fitzgerald's status as a contract employe does not remove any motive for fabrication; had he mistakenly not notified Claimant; that would supply ,

 motive enough to misrepresent as Co Claimant's registration.

 What is's ig;Iiifi~cant, howwe,r,.is that after review of the record, there
 is' a rpugh_balance'~in~lthe evideijce: This''is'.where "the signi£icance-~of the
 burden of proof becomes important. -Since there is a balance in the evi-

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