AWARD 139 - CALL MORE THAN ONCE

Second Division Award No. 4815 (Hall)

"Carrier contends that Claimant O'Banks' home was called three times but no answer was received. O'Banks asserts that he was home with his family as he had recently arrived there after the Holmes assignment and received no telephone calls. Carrier admits that the Relief Foreman who attempted to call O'Banks did not verify the "No Answer" with the telephone operator. Carrier had the burden of proving that he was not available and as Claimant O'Banks had just completed the assignment to Holmes at 11:15 P.M. the Carrier should have exercised more diligence in verifying the "No Answer" with the telephone operator. As Saturday was a work day for Claimant, he worked eight hours on his regular assignment for which he was paid."

Second Division Award No. 5999 (Zumas)

"Claimant was regularly assigned from 7:00 A.M. to 3:30 P.M. on the date in question. At approximately 7:30 P.M. it was necessary to dispatch a wrecking crew. Claimant, according to Carrier, was called at his home five times from 7:40 P.M. to 8:40 P.M., and there was no answer. Claimant contends that he was in fact at home during his period entertaining visiting relatives, the phone was no more than 10 feet away, and it did not ring. There was no effort on the part of Carrier to determine whether or not the telephone was in working order, or that the "no answer" was verified with the telephone company.

Under the facts in this dispute, given the well known uncertainties and malfunctions of telecommunications equipment, Carrier in order to protect itself has a duty to determine whether the telephone equipment is in working order. Award No. 4815."

Second Division Award No. 6682 (Yagoda)

"Claimant states that he was at home between the hours of 6:15 p.m. and 7:45 p.m. that evening and his phone was not in use during this period.

Employes contend that a reasonable effort was not made to insure contact with and assignment of Claimant. In their view, such reasonable effort should have included verification of number and busy signal by an additional call to operator, even if busy signal was at first encountered. They point out that there was sufficient time for this inasmuch as crew was not scheduled for assemblage and departure until 7:45 p.m.

We agree with Employes (sic) that the admitted failure to take minimal step of verification of busy signal - not shown likely to cause impediment to Carrier for expeditious assembly and departure of wreck crew - constituted a default in reasonable carrying out of obligation to call petitioner under Rule 97."

Third Division Award No. 31973 (Benn)

"On September 15, 1993, Claimant was assigned to Position 102, 7:00 A.M. to 3:00 P.M., at the Customer Service Center in Jacksonville, Florida. An overtime vacancy arose on Position 200 for that date. The parties agree that the calling time for that vacancy was between 1:00 P.M. and 3:00 P.M.

There is some confusion in the record concerning the operative facts. However, the calling records show that a call was made to Claimant at his work station at 3:10 P.M., but Claimant had already departed. A call was then made to Claimant's home at 3:11 P.M., but he had not yet arrived. The caller then moved down the list and a junior employee was used to fill the vacancy.

Claim was filed seeking compensation for Claimant at the overtime rate for the lost work opportunity.

The Carrier must make a bona fide effort to contact employees for overtime vacancies. Calling Claimant at his work station for a vacancy outside the designated calling period for that vacancy when Claimant's shift was over and then attempting to call him at home at a time when it was virtually impossible for him to have made it home from work is not, in our opinion, a bona fide effort.

The Carrier's arguments that the system is cumbersome and that there are a large number of calls to be made in a given day in light of the number of vacancies that occur do not change the result. Those factors cannot be attributed to Claimant. In this case, the Carrier's procedures did not work. Claimant should not be made to suffer because of that failure. Calling an employee at his work station outside of the designated calling period after his shift was over and then attempting to contact him at home at a time when he could not have made it there is just not a bona fide effort.

Third Division Award 29181 is distinguishable. Here, the call was made to Claimant outside of the designated calling period for the vacancy. Here, the Carrier attempted to call Claimant at his work station after his shift ended. That Award does not indicate that a similar circumstance existed in that matter.

With respect to a remedy, the Organization seeks that Claimant be paid at the overtime rate for the missed overtime opportunity. The Carrier argues that any remedy should be at the pro-rata rate. In this case, we find that payment at the overtime rate is appropriate.

As a result of the Carrier's violation of Claimant's seniority entitlements, Claimant lost a work opportunity that would have paid him overtime. The purpose of a remedy for an Agreement violation is to make the affected employee whole. Therefore, the only way to make Claimant whole for the Carrier's violation is to pay him the overtime that he would have earned but for the Carrier's violation. The Carrier has not cited any substantial body of precedent on the property to require a different result."

Third Division Award No. 31972 (Benn)

"Claimant was on his rest day on March 4, 1994. One call was made to Claimant's house approximately eight minutes before the start of the shift. The caller was advised that Claimant was out playing golf. Claimant states that he was home on March 4, 1994 until 2:20 P.M. at which time he left for approximately two hours. An employee junior to Claimant was then used to fill the vacancy.

In these situations, the Carrier 'has the obligation to make a reasonable effort to communicate with employees (sic)…' Third Division Award 21222. Calling an employee eight minutes before the scheduled shift when the Carrier was aware of the vacancy approximately 16 hours beforehand is not reasonable, particularly when the record demonstrates, as here, that the employee was at home during any reasonable period that the call should have been made. As a result, Claimant lost a work opportunity. He shall be compensated for that loss."

Third Division Award No. 16279 (Zack)

"There is no question over the fact that Guzik was senior to Orozco and thus had a prior right to the work in dispute. The Carrier's practice in informing senior employes (sic) of available work has been to telephone them. The evidence is in direct contradiction as to whether or not a telephone call was made, although it is clear that none was received. We are convinced from the record that Claimant and other members of his household were at home at the time of the call. Carrier had the responsibility of informing the Claimant of the work, although it too is subject to the vagaries of human limitations and our electronic society. A call could have gone wrong for a multitude of reasons including, a bad connection, a misdialed number, failing to reach an outside line if called through a switchboard, not awaiting a dial tone, repairs on the line or the use of a faulty piece of equipment. We do not go so far as to hold that Carrier is required to verify receipt of every message in every instance, either by telegram, or actual visit to the employe's (sic) home, or even by repeated telephone calls. But Carrier is required to make a reasonable rather than a minimal effort to locate senior employes (sic).

We find, that in this particular case there is no evidence in the record to support the contention that Claimant Guzik was not available at the time, or that a reasonable effort was made to locate him and inform him of the available work."

Third Division Award No. 17182 (Dugan)

"In this dispute we have conflicting allegations in regard to whether or not a telephone call was made in this instance to Claimant.

As this Board said in Award No. 16279 (Zack): 'A call could have gone wrong for a multitude of reasons, including a bad connection, a misdialed number, failing to reach an outside line if called through a switchboard, not awaiting a dial tone, repairs on the line or the use of a faulty piece of equipment.' Therefor we are of the conclusion, that instead of permitting the telephone to ring approximately 20 times (although we are not condeming Carrier's supervisor in this instance for doing this) we feel that another phone call to Claimant was warranted inasmuch as there wasn't an 'Emergency' as such involved herein wherein such another call to Claimant could not have been made…See Award 13474 (McGovern).

For the aforesaid reasons, this claim must be sustained."

Third Division Award No. 18425 (Franden)

"It is agreed that the Carrier was obligated to make a reasonable attempt to contact the Claimant. The record discloses that during the handling on the property no proof was ever submitted to substantiate the Carrier's contention that Claimant was called. Since the right of the Claimant to be called is not disputed the Carrier must sustain the burden of proving that it called the Claimant. This it failed to do."

Third Division Award No. 19658 (Blackwell)

"On the whole record we find that Carrier's efforts to reach claimant by phone were not adequate on February 5, but were adequate on February 7. The individual who called claimant on February 5 allowed the phone to ring several times and then called another section foreman. The caller should have redialed the phone number at least a second time to provide greater assurance that the proper number was being dialed. We shall therefore sustain the claim for February 5, 1971…"

Third Division Award No. 20109 (Eischen)

"Carrier defends its denial of the claim on the ground that Claimant failed to provide Carrier with a correct telephone number. The record before us, however, reveals substantial confusion among Carrier personnel responsible for calling Claimant regarding the telephone number they called on the day in question, i.e., whether the calls were made to his old number or to his current number. In this connection, Claimant's contention that he had several times prior to December 25, 1971 been called to his assignment by Carrier at his current correct number stands unrefuted.

On the facts before us we are not convinced that the requisite reasonable effort was made by Carrier to contact Claimant before calling and using another employee in his position. Accordingly, the claim must be sustained."

Third Division Award No. 20466 (Eischen)

"Pursuant to rules such as Rule 19, a reasonable effort must be made to call the maintainer on whose territory the trouble develops. In our considered judgement (sic) the single telephone call by the wire chief, in the facts shown on this record, did not constitute such requisite reasonable effort. Therefore, the claim shall be sustained."

Third Division Award No. 20534 (Sickles)

"However, the record, as compiled on the property, fails to disclose if Gross attempted to contact Claimant on a number of occasions between 2:30 and 3:00, or if he made one call during that period before he called Gonzales. The record does indicate that Gonzales reported to work at 3:00 p.m., however, we are not advised as to the time he received the call to report for work, and we must presume that Gross ceased attempting to contact Claimant after he advised Gonzales to report for duty.

In Award 17182 (Dugan), the Board noted:

"A call could have gone wrong for a multitude of reasons, including a bad connection, a misdialed number, failing to reach an outside line if called through a switchboard, not awaiting a dial tone, repairs on the line or the use of a faulty piece of equipment. Therefor we are of the conclusion, that instead of permitting the telephone to ring approximately 20 times (although we are not condeming Carrier's supervisor in this instance for doing this) we feel that another phone call to Claimant was warranted inasmuch as there wasn't an 'Emergency' as such involved herein wherein such another call to Claimant could not have been made…See Award 13474 (McGovern)."

Award 19658 (Blackwell) considered a dispute between these parties. That Award held:

"The individual who called claimant on February 5 allowed the phone to ring several times and then called another section foreman. The caller should have redialed the phone number at least a second time to provide greater assurance that the proper number was being dialed."

See also Awards 16279 (Zack), 18425 (Fraden), 18870 (Franden), 20109 (Eischen) and Second Division Award 6682 (Yagoda).

Carrier has relied upon denial Award 20408 (Edgett). However, Carrier in that dispute attempted to contact the employee "several times."

The above cited Awards have demonstrated that one phone call is not sufficient. Award 19658, concerning this same Carrier, held that at least one redial was required. Without regard to the fact that the record contains no statement from Gross, the documents considered on the property fail to indicate that more than one call was made. Consequently, we will sustain the claim."