Award Number 17839

Docket Number TE-16313

NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

James R. Jones, Referee

"On Monday, February 22, 1965, dispatcher M. F. Martin, by wireless telephone (Radio) called No. 50 going out of Houston and gave this message;

"Houston, Feb. 22,1965 C&E No. 50-Houston Do not go beyond Dyersdale until derailment cleared 1 mile west of Huffman, will contact you by radio.

MFM . . . 828 AM."

"C&E No. 50 Reduce speed to 30 MPH MP 396 pole 9 to 396 pole 10 and watch for close clearance... MFM."

1. Carrier violated the Telegraphers' Agreement of March 1, 1952 when it permitted a member of the crew on No. 50 on the said day to copy a message by radio which is strict violation of this order. Due to the fact that Opr could have eopied this message, opening a message center on No. 50.

2. The Carrier also violated The Telegraphers' Agreement on Feb. 22, 1965 under Scope Rule 1 and Rule 2 (c) when it permitted a member of the train crew, whoever he might be or title held, did violate this said rule and is in strict violation of The Telegraphers' Agreement.

3. The Carrier shall compensate the senior idle telegrapher, extra in pref, 8 hours at pro rata and do so claim in favor of Mr. R. J. Touchette.

4. The Carrier shall compensate the senior idle telegrapher, extra in pref, for the Rule 1 and Rule 2 (c) violation at pro rata rate for transmission of the said train order in favor of N. L. Carriers, Jr.

hours' pay each at the straight time rate alleging a violation of the Telegraphers' Agreement on February 22, 1986.

The claim as submitted is vague and indefinite. The first part of the claim is enclosed in quotation markes giving the impression that some written form is being quoted, even though the statement indicates it was a conversation between a train dispatcher and a member of the train crew of No. 50 at Houston. Obviously there was no written message involved, but rather a radio conversation between the dispatcher at Houston and a train crew member at Houston. Also, in Item No. 1 it is stated the Agreement was violated when a member of the crew on No. 50 was permitted to COPY a message by radio. There is nothing in the record indicating that any part of the radio conversation was copied by a member of the crew of No. 50. In addition, Item No. 2 is an incomplete sentence and even so eight hours is claimed predicated on the language contained in Item No. 2 which does not identify the act that allegedly resulted in the violation.

There is no rule of the Telegraphers' Agreement prohibiting train dispatchers and others from conversing with one another over the telephone, radio or any other means utilized for voice communication. There is no rule of the Telegraphers' Agreement which reserves to telegraphers the exclusive right to transmit information between the train dispatcher and any other employe of the Carrier. The only work comprehended by the Telegraphers' Agreement is that which is necessary in copying train orders issued by train dispatchers to telegraphers located in telegraph offices. The radio conversation between the dispatcher at Houston, and a crew member of No. 60 while No. 60 was at Houston certainly does not fall within this category.

In view of the foregoing, claims are without merit or rule support and are hereby declined.

Yours truly,

/s/ B. W. SMITH"

OPINION OF BOARD: Claimants rest their case on Rules 1 and 2 of the Agreement. This Board cannot find that Rule 1 is applicable here. Rule 2 does apply.

However, the burden of proving a violation of Rule 2 is upon the Claimant. Mere assertions unsupported by sufficient probative evidence cannot be sustained by this Board. The Board cannot be expected to resolve facts unless the parties to the dispute agree what is fact or unless there is evidence presented on which a judgment of fact can be made.

In this case, Claimant alleges dispatcher Martin violated Rule 2 by transmitting two messages to the crew on train No. 50. Claimant says Rule 2 was further violated by Carrier permitting the train crew on No. 50 to copy a message by radio. In the handling on the property, Carrier denied that any train order was sent, or that any message was copied.

Since there is no agreement as to these basic facts, it is incumbent upon the Claimant to submit further evidence to support its claim. Claimant concludes that the Carrier's Superintendent did not disagree with the facts pre-

sented by the District Chairman and actually the Superintendent accepted the alleged facts as corect when the Superintendent denied the claim. This Board cannot reach the same conclusion.

We feel that there were many ways to present competent evidence or testimony to support the contentions. Claimants failed to present such evidence and therefore the claim cannot be sustained.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are repectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

Claimants failed to meet its burden of proving its claim. AWARD

Claim dismissed. NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division ATTEST: S. H. Schulty