Page I Award No. 5
 Case No. 5

(BROTHERHOOD OF MAINTENANCE OF WAY
 PARTIES TO DISPUTE: (EMPLOYES DIVISION
 (
 (UNION PACIFIC RAILROAD COMPANY

 STATEMENT OF CLAIM:










FINDINGS:



respectively carrier and employee within the meaning of the Railway Labor Act, as approved

 June 21, 1934.





On Sunday, November 2, 2003, Carrier MTM D. Zelasney called out two employees, T. R. Witt

 and S. J. Pettis, to work on a derailment. Each of the employees worked 12 hours of overtime

 that day on the derailment. Both employees had Machine Operator Common seniority dates that

Page 2 Award No. 5
 Case No. 5 were junior to the Claimant's. The Organization, on December 17, 2003, filed a claim alleging that under Rules 4 D. and 31 A. of the Agreement Claimant Rumler, as the senior employee, should have been called and been assigned the work. At 8:00 p.m. on November 2, 2003, and again at 9:30 p.m. that evening, MTM Zelasney did call and speak with the Claimant on the telephone and arranged for the Claimant to report for duty early the next morning to begin work. The Carrier does not contest that Claimant, as the senior employee in the classification, was entitled to be called and assigned the work prior to the two above-named junior employees. The Organization contends that MTM Zelasney did not call the Claimant for the Sunday overtime assignment. The Carrier contends that MTM Zelasney did call the Claimant but that apparently the Claimant did not answer the phone. In support of their respective positions the Organization and the Carrier produced written statements respectively from the Claimant and Mr. Zelasney. The Claimant's statement represented as follows:

Furthermore I confronted Mr. Zelasney about him not calling me in to work. His response was that he didn't know why he didn't call me and then said that I would have to turn in a time claim. Mr. Zelasney provided the following statement:


Page 3 Award No. 5
 Case No. 5
 The Carrier argues in its submission before this Board that the parties have a fundamental disagreement regarding the facts. In contrast to the Organization's contention that the Carrier failed to offer the work in question to the Claimant, the Carrier asserts, it has consistently maintained that Claimant was called in an effort to offer him work on an overtime basis, but no contact was made until later in the evening that same day. The Carrier contends that there is a direct conflict in the evidence, which is irreconcilable, and that, in such circumstances, since the Organization has the burden of proof and has been unable to carry it, the claim must be denied.
 The Board notes, first, that in his statement Mr, Zelasney does not state that he actually called the Claimant between 8:00 a.m. and 10:00 a.m. on the date in question. He merely asserts that he "attempted to phone all employees." At best that statement is ambiguous. For example, he could have had a list of employees that he thought was complete but which did not have the Claimant's name on it. If he called every name on the list, erroneously believing at the time that it contained the Claimant's name, be could truthfully later assert that he attempted to phone all employees.
 Another possible example would be a situation where A begins to telephone B but is interrupted in the middle of the call and never completes the call. A could truthfully state that he attempted to call B even though he never completed the call. The point is that the word "attempted" is vague and can subjectively mean a number of different things. Mr. Zelasney's written statement should be compared, for example, with the written statement in Third Division Award No. 33895, relied on by the Carrier, where the Timekeeper provided a written statement "that he had tried to contact the Claimant, but got no response and therefore called [thejunior
                                              PLB No. 7098


Page 4 Award No. 5
 Case No. 5 employee]." By contrast Mr. Zelasney's statement does not even assert that he specifically called the Claimant or provide any reason why contact was not made (e.g., got no response when the call was made).
 In addition, Mr. Zelasney's statement did not meet the allegation in the Claimant's statement that the Claimant confronted him about not calling the Claimant in response to which Mr. Zelasney said that he did not know why he did not call the Claimant. The Claimant was thus alleging that Mr. Zelasney implicitly admitted to the Claimant that he did not call him. Mr. Zelasney's written statement does not address that allegation and it remains undisputed in the record.
 The Board finds that the Organization has proved by substantial evidence that Mr. Zetasney did not call the Claimant to offer him the overtime opportunity in question. The claim will be sustained.

                        AWARD


      Claim sustained.


ORDER

This Board, after consideration of the dispute identified above, hereby orders that

an award favorable to the Claimant be made. The Carrier is ordered to make the Award effective

                                              PLB No. 7098


Page 5 Award No. 5
 Case No. 5 on or before 30 days following the postmark date the Award is transmitted to the parties.

            Sinclair Kossoff, Chairman & Neutral Member


Dominic A. Ring, C ier ber Roy C. Ro nson, Employe Member

 Chicago, Illinois
 Dated: August 24, 2008