PUBLIC LAW BOARD NO. 5564
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 4
and )
Award No. 3
NORTHEAST ILLINOIS REGIONAL COMMUTER
RAILROAD CORPORATION )
Martin H. Malin, Chairman & Neutral Member
R. C. Robinson, Employee Member
J. S. Morse, Carrier Member
Hearing Date: May 20, 1996
STATEMENT OF CLAIM:
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it called and
assigned junior Assistant Water Service Mechanic D.
Linstrot to perform overtime service on December 9,
1994 and January 2, 1995, rather than calling and
assigning Water Service Mechanic C. Streeter, Jr. who
was senior, qualified and available to perform such
service (Carrier's File 08-27-199).
2. As a consequence of the aforesaid violation, Claimant
C. Streeter, Jr. shall be allowed twenty-five (25)
hours' pay at his respective time and one-half rate.
FINDINGS:
Public Law Board No. 5564, upon the whole record and all the
evidence, finds and holds that Employee and Carrier are employee
and carrier within the meaning of the Railway Labor Act, as
amended; and, that the Board has jurisdiction over the dispute
herein; and, that the parties to the dispute were given due
notice of the hearing thereon and did participate therein.
Rule 18 (I) of the applicable Agreement provides:
When overtime service is required of part of a gang
continuous with, before or after the regular work period,
the senior available qualified employes in the rank involved
shall have preference to such overtime if they so desire.
556y-3
The Organization maintains that Carrier violated the above
quoted Rule by failing to call the Claimant on the dates in
question. Carrier maintains that it complied with the Rule
because the B & B Foreman tried several times to call the
Claimant but reached an answering machine or received no answer.
Carrier has submitted a signed statement from the B & B Foreman
attesting to having called the Claimant. The Organization has
submitted signed statements from the Claimant attesting to having
been home, having not received any phone calls from the Foreman,
and to not owning an answering machine.
Thus, we are faced with two completely conflicting versions
of the events and two completely conflicting signed statements.
Resolution of these conflicts requires assessing the relative
credibility of the Claimant and the B & B Foreman. As an
appellate body, however, we are not in a position to make such a
resolution, because we have not had the benefit of observing of
the demeanor of the individuals, or the benefit of having the
accuracy of their statements tested by cross examination. Faced
with only the black-and-white statements, we are forced to
conclude that they are equally credible. Because the
organization bears the burden of proving that the facts are more
likely than not to be in accord with its position, we are forced
to deny the claim.
AWARD
Claim denied.
X14Z
Martin H. Malin, Chairman
J.S. orse, R.C. binson
Carrier Member Organi ation Member
Dated at Chicago, Illinois, September 9, 1996.
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