OPINION OF BOARD: Bluffton, Ohio formerly an open telegraph station, is now a non-agency prepay station under jurisdiction of the agency at Jenera, which is part of a dualized position subject to the telegraphers' agreement.

On the claim dates a maintenance employe used a telephone at Bluffton to secure from the train dispatcher a line-up of train movements necessary for operation of his motor car.

Claimant is the occupant of the dualized position of agent-operator at Mt. Blanchard-Jenera referred to above. Ire filed a claim for a "call" payment in each instance, asserting that violation of the agreement occurred when the maintenance employe received line-ups by telephone at Bluffton. Carrier decined the claims, and the resulting dispute was handled in the usual manner without a settlement being reached. The Employes then appealed to the Board for a decision.

Although several rules are cited in support of the Employes' position, the record clearly shows that the parties finally settled on Rule 20 as being the controlling agreement provision involved. This rule reads as follows:

"No employe other than covered by this agreement and train dispatchers will be permitted to handle train orders or other instructions affecting the movement of trains, motor cars or other traffic at stations or offices where an operator is available, except in emer-

gency, in which case the operator will be entitled to a call at overtime rate of time and one-half time.

This rule does not apply to yard movements in Akron territory."

This rule resembles the so-called standard train order rule found in many telegraphers' agreements and which has been the subject of numerous awards of this Division of the Board. There are significant differences, however. It relates specifically to the type of communication involved in the present case, But its effectiveness is clearly restricted to "stations or offices where an operator is available." Thus the applicability and .effectiveness of the rule depends on the facts of each case. Here, the decisive fact question is whether an operator was available at Bluffton at the time the alleged violations occurred.

The Employes asserted the claim and thus assumed the burden of establishing the facts necessary to prevail. A careful study of record shows very clearly that they failed to meet their burden of proof. They contended that the Claimant could have been made available. They do not show, or even suggest how this could have been done, since he in fact was on duty at Mt. Blanchard, some eighteen miles from Bluffton, at the crucial times. If there was some way this employe could also have been available at Bluffton, the burden of establishing such fact was on the Employes. Nor do they show, or even suggest, that some other operator was available.

In accordance with many prior awards, too numerous to mention, this claim must be dismissed for want of proof.

FINDINGS: The Third Division of the Adjustment Board, up on 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 respectively 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

That the claim must be dismissed for failure of proof.

AWARD