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                            Herbert Fishgold, Referee


        (Brotherhood of Maintenance of Way Maployes PARTIES TO DISPUTE:

                      (Missouri Pacific Railroad Company


        STATB·fElv'T OF CLAM "Claim of the System Committee of the Brotherhood that:


    - (1) The Agreement was violated when Trackman R. D. Hall

        was not called to perform overtime service on his assigned position

        (Trachea, Patrolling Gang 5646, Hemyetta, Oklahoma) on July 8 and 9a

        1978 and the Carrier inste~ called and used a junior trachea assigned to

        to Section 5641 fns such se~(Qrrier File 5-310-275).


        (2) Trachea R. D. Hall be allowed thirteen (13) hours of pay at his tame and one-half rate because of the violation referred to in Part (1) hereof."


        OPINION OF BOARD: Claimant R., D. Fall was regularly assigned as a Trachea

        to Patrol Gang 5646, Moray - Friday, with Saturday and Sunday as rest days. On Saturday. July 8, 1978, and Sunday, July 9, 1978, Carrier decided to have portions of its track patrolled between Mile Post 120 and Mile Post 217 on the Oklahoma. Sub-division, Claimant's assigned territory. Instead of assigning Claimant, Carrier called and used a junior trachea, W. B. Barnett, who is assigned as such to Section Gang 5641.


        The Organization maintains that Claimant, as the regularly assigned trackman on Patrol Gang 5646, is contractually entitled to perform all track patrol work on his assigned territory, including overtime. Claimant claims that he returned home from work at 10:00 p.m. on Friday, July 7, 1978, and was thereafter home and available for a call which he never received. Moreover, the Organization mai prior to July 8 and 9, and that on July 7, Foreman C. W, Mustin instructed Trachea Barnett., while on the fob, to work on those dates. Inasmuch as Claimant was also at work on January 7, he, as the senior employe., should have been notified.


        Carrier does not dispute that Claimant was entitled to this work if he had been available. However, Carrier maintains that Foreman Mustin was not told about the work in question until Saturday morning, July 8, and again on Sunday morning, July 9, dad that he made several attempts to telephone Claimant on both dates but was unable to contact him. It was only then that Mustia called the junior employe.

                _ Award Number 23834 Page 2

                Docket Number MW-234E2


Thus, throughout the investigation of this claim on the property, two issues remained in disputes whether Carrier made adequate efforts to call Claimant to perform the work, and whether Foreman Mustin and Trackman Barnett were notified is advance, on Friday, July 7, of the need to work overtime on July 8 and 9.

 This Board has accepted unavailability as a defense only after Carrier made a reasonable effort to ascertain if the employs entitled to a call was in fact available. Here the Carrier has contended from the beginning that several attempts were made to contact Claimant by telephone on both Saturday and Sunday, but Foreman Mustin was unable to contact him. However, Claimant contends that he was at home and available for duty, but Carrier did not call him. In this regard, both (terrier and Claimant contend that the other has failed to offer any proof or evidence other than statements quoted in their submissions that Carrierj, through Forman Mustin, attempted to call Claimant, or that Claimant was at home at the time the calls were allegedly made.

 Furthermore, during the course of investigating the claim on the property, each party provided signed statements supporting their respective positions as to whether idustia and Barnett had been notified of the decision to work overtime prior to Saturday, July 8. The Organization pro=Tided signed statements frog Claimant and his Foreman,, K. R. Austin, contending that Mustier and Barnett were notified at work on Friday, July 7. CEL.-rier presented signed statements from idustia and Barnett stating, to the contrary, that they had not been notified is advance.

 Thus, as to both issues, there errs disputed facts which were not resolved by evidence developed on the property, and which this Board is, therefore, unable to resolv held that when such rnaflicta in evidence arise in essential aspects of a claim , there is no alternative but to dismiss the claim. See, e.3., Awards 1501, 19531, 19702 and 20053. Accordingly,, since we cannot properly decide the merits of this claim without resolving these issues, we have no choicer but to dismiss the claim.

        FLNDLVG3: 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 is this dispute are respectively (terrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
 Award. number 23834
 Docket Number hiW-23462

 Page 3

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

 That the claim be dismissed.

 Claim dismissed.

 Attest: Acting Executive Secretary

 A W A R D
National Railroad Adjustment Board

 NATIONAL RA=OAD AD,TJS24ENZ' BOARD
 By Order of Third Division

 BY
      emarie Brasch - Administrative Assistant


Dated at Chicago,, Illinois this 26th day of March 1982.