(American Train Dispatchers Association PARTIES TO DISPUTE: (Burlington Northern Inc.

 STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:

 (a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 1(d) thereof in particular, when it required and/or permitted other than those within the scope of said Agreement in Carrier's Cicero, Illinois train dispatching office, to perfor
(b) For the above violation, Carrier shall now be required to compensate Claimant C. D. Richmond eig then applicable to trick trai. dispatchers for July 26, 1970.

 OPINION OF BOARD: About the only things the parties agree to in this case is
 that "an operator", who manned and operated a C.T.C. machine
 near Pacific Junction, Iowa, lined switches and signals for train #101 to move
 through C.T.C. territory from Red Oak to Emerson on July 26, 1970. From this
 point on the parties disagree on practically everything else relative to the
 claim.

 The Organization filed this claim on behalf of C. D. Richmond, senior regularly assigned train dispatcher, for eight (8) hours on that date at punitive rate of pay, alleg
          "Centralized Traffic Control machines at present in service and in the future installed will be manned and operated by train dispatchers when the machine is located in offices where train dispatchers are emp When a C.T.C. machine is located in an office where train dispatchers are not employed and it is manned and operated by other employes, a train dispatcher shall have and exercise complete authority over the movement of, and shall control and direct all train movements in such territory.


                NOTE: This shall not affect the present manning of C.T.C. machine by telegraph operators at Pasco."


There is no dispute between the parties as to the proper interpretation and application of this rule the apparent misunderstanding between the Operator and the Dispatcher as to what instructions were issued by the Dispatcher to the Operator with respect
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                    Docket Number TD-19981


to the handling of Train #101.

 The Organization contends this Operator (identified by Carrier as L. E. Myers) moved train #101 "without first obtaining positive authority from the Train Dispatcher in control". (R.p.4) Carrier's Superintendent, in denying the claim, did so contending that "the Operator understood the Train Dispatcher to so authorize the move."(R.p.4) Thus, we have the dispute. Conflicting evidence p
For instance, in the Superint--rdent's letter of declination dated September 1, 1970, he said:

            "Operator L. E. Myers advises that he understood the Dispatcher to line No. 101 to Emerson and he took that action. **** The Operator informed the Dispatcher that he understood that was the Dispatcher's instructions."


The Organization denies this, claiming that "no such contact was completed until after the operator had allowed train #101 to proceed by his
 station without the positive authority of the train dispatcher " In
 support of this position the Organization, at a conference on April 21,1971, t
 delivered to Carrier's representative a letter from Office Chairman Kassers
 to General Chairman Darragh, dated September 11, 1970, containing the following
 language:

          "Following is the contents of a letter I received from Dispatcher R. E. Wachter who was on duty at the time of the violation:


          'Today (7/26/70) operator at Paci'Cc Jet. came on dispatcher fo:e and said '101 on at Red Oak'. I was in process of giving if165 to Ottumwa, after I finished giving 0165 to Ottumwa operator I told Pacific Jet. operator to h radio and informed X1101 we were going to hold him at Red Oak until yard at Pac Jet could handle, at 7:45 a.m. operator Pee jet came in on the telephone and OS' 4^l.01 by Red Oak at 7:45 a.m., I asked him who ga·re yc» permission to line-up the train, he said, 'I did not hear you say anything about what to do with the train, so T naturally gave #101 the green signal to Emerson'."


Carrier questions the identity ~f the rerson who wrote the above quoted statement, alleging that it might `~!..e been written by Claimant, by the Office-airman, or someone else. Carrier further points out that the
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                    Docket Number TD-19981


original of this allegeu Wachter letter was never produced, and that the identity of the alleged author was not disclosed until Petitioner filed its rebuttal with the Board. The organization strongly denies these charges and insists that, as alleged, the letter was written by Dispatcher W. E. Wachter, who was "on duty at the time of the violation"; that it was written on the date claimed, July 26, 1970, and received by Office Chairman Kassera.

 Carrier raises the question of the Organization waiting seven months from the filing date of the claim, and nine months from time of alleged violation, to present this l Wachter statement. On the other hand, the Organization asks why did Carrier wait three months to raise an objection to the statement, and why wasn't an objection made at thetime the statement was produced at the conference between the parties.

 Such conflicting charges and counter-charges continued throughout the presentation of this case. 'Ile Organization says that Claimant Richmond was not on duty at time of alleged violation and became the claimant here because he was the senior regularly assi;ned dispatcher "off duty and available at a time when there time slip signed by the Office Chairman does not' mention that he was on his rest day and off duty, and that therefore Carrier's position that Claimant was working and lost nothing should prevail.

 Carrier contends that no proper report was made at the time of the alleged violation. Organization insists that Claimant Richmond was under no obligation to make a report of such an incident that he had no personal knowledge of by reason of hi as quoted in Office Chairman Kassera's letter, was sufficient and proper.

 There is so much conflicting evidence in this case that the Board is unable to determine what actually did happen at the time of the alleged violation of the Agreement and, since we are unable to resolve the conflict, we have no alternative but to dismiss the claim.

 In support of this action we rely on Third Division Awards 18806 (Devine), 18871 (Franden), 19501 (O'Brien), 19531 (Brent), as well as Public Law Board 694, Awards 16 and 17.
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          FINDIMS:'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 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 be dismissed.


                          A W A R D


          Claim dismissed


                                                        t


                              NATIONAL RAILROAD ADJUSTDIENT BOARD

' By Order of Third Division

          ATTEST: Executive Secretary


          Dated at Chicago, Illinois, this 30th day of November 1973.