CASE NO. 30
STATEMENT OF CLAIM
Claim of the System Committee of the Brotherhood that:
The Agreement was vio lated when the Carrier failed to call and use Track Foreman
H. R. Magallanes to perform overtime service on his as signed territory on January 12, 1997 and instead called and used Extra Gang Foreman J. A. Gutierrez (System File MW-97-
90I 1048351 SPE)
As a consequence of the violation referred to in Part (1), furloughed Track Foreman
H. R. Magallanes shall be al lowed twenty (20) hours' pay at his time and one-half rate.
OPINION OF BOARD
Claimant held seniority as a Track Foreman on Gang 394 head quartered in Uvalde, Texas under supervision of Roadmaster S. Garcia. On January 12, 1997 (Claimant's rest day), J. A. Gutierrez
- a Track Foreman on Extra Gang
307 headquartered at San Antonio, Texas - was called and assigned overtime duty repairing a broken rail on the Uvalde District in the vicinity of Mile Post 325, Anacacho Siding and Mile Post 317.50.
There is no dispute that in ordi nary circumstances, Claimant should have been called for the work which was performed in his district (Uvalde). However, the Carrier jus tifies the assignment of Gutierrez on two grounds: (1) the Carrier con tends the broken rail was an emer gency permitting it to use an out of district employee; and (2) the Carrier contends that Claimant was called but did not respond, thereby per mitting the assignment of the work to Gutierrez.
We shall sustain the claim.
First, putting aside the fact that on the property the Carrier did not specifically articulate in the corre spondence that the broken rail con stituted an "emergency", without
H. R. Magallanes Page2
more, we are unable to find that emergency conditions existed which would allow the bypassing of ordi nary assignment procedures. All we know from the exchanged corre spondence is that there was a bro ken rail. While in certain circum stances a broken rail certainly could be considered an emergency, there is insufficient evidence in this record for us to conclude that conditions existed causing this particular situ ation to be an emergency. The Carrier has the burden to establish that the work was a result of an emergency. That burden has not been met.
Second, with respect to whether Claimant was called, the record at first appears in dispute. The Carrier asserted that Roadmaster Garcia called Claimant at home and on Claimant's mobile phone, both without response. The evidence supporting that assertion is con tained in the positions of the Carrier during the handling of the claim and from a statement from Director of Track Maintenance D.
W. Morrow.
The Organization contends that Roadmaster Garcia did not call Claimant as the Carrier contends. The Organization furnished to this Board along with its submission a
statement from Claimant stating that he was available for work on January 12, 1997, but received no contact from Roadmaster Garcia on his beeper or home and cell phones. The Carrier objects to Claimant's statement, contending that it was not properly exchanged on the prop erty.
Therefore, in this case we have been presented with a record where the Carrier contends Claimant was called without success, but there is no statement from the individual (Roadmaster Garcia) who made the call and the Organization contends Claimant was not contacted, but there is a question over whether Claimant's statement to that effect was properly exchanged on the prop erty.
We need not resolve the question over whether Claimant's statement was properly exchanged on the prop erty. On the property, the Organization contended that Claimant was not called by Roadmaster Garcia. See e.g., the Organization's January 16, 1997 claim ("Mr. Magallanes ... was not called for the overtime work on the territory that he works ....") and the Organization's April 8, 1997 letter ("I take great exception to your de nial letter whereby you have stated
H. R. Magallanes Page3
that Road Master, Mr. Garcia tried to contact Mr. Magallanes by tele phone."). In response to the Organization's position that Claimant was not called, the Carrier contended that Roadmaster Garcia made the calls.
The problem the Carrier has here is that there is no direct evidence from Roadmaster Garcia that the calls to Claimant were made. The only evidence offered by the Carrier to support its position that Claimant was called was the hearsay assertions by those other than the caller Roadmaster Garcia. Moreover, there were no call records presented that could show that the calls were made to Claimant as the Carrier contends.
The Carrier's position that Claimant was called is an affirma tive defense. The evidence relied upon by the Carrier does not suffi ciently support that defense. On the basis of what is before us, we cannot find that Claimant was called by Roadmaster Garcia as the Carrier contends. The claim there fore has merit.
With respect to the remedy, as a result of not being called, Claimant was deprived of a work opportunity involving overtime. Claimant shall therefore be made whole at the ap-
propriate Agreement rate for that lost overtime opportunity based upon the number of hours worked by Gutierrez on the date in ques tion.
Claim sustained.
Dated: \.,-.. \-