(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it failed to recall Mr. H. Merriweather to service on and subsequent to February 17, 1981 (System Docket CR-204).

 (2) Because of the aforesaid violation, the claimant shall be allowed two hundred ninety-two (292) hours of pay at the trackman's straight time rate and thirteen and one-half (13 1/2) hours of pay at the trackman's time and one-half rate."

 OPINION OF BOARD: Claimant, with a seniority date of July 17, 1974, was
 assigned as a Truck Driver at Carrier's Hawthorne Yards
 when he sustained an on-duty injury and was placed on the disabled list on
 December 31, 1980. On February 9, 1981, Claimant was medically qualified for
 service and was then placed on the furloughed list, filing his name and
 address with Carrier in accordance with the provisions of Rules 3-D-5 and
 3-D-1. After a bulletin advertising the position, a Trackman with less
 seniority than Claimant (J. M. Basso) was awarded a position as Trackman with
 the Belt Shop Section Gang effective April 6, 1981. Basso had been furloughed
 from the Belt Shop Section Gang, which is in the same sub-division as the
 Hawthorne Yard. Claimant was recalled to service as a Machine Operator
 subsequently.

 Petitioner insists that Carrier ignored Claimant's seniority rights and the clear provisions of Rule 3-D-3. It is argued that Claimant should have been recalled on February 17, 1981, when Trackmen forces were increased. Carrier, on the other hand maintains that the vacancy in dispute was on the Belt Gang and Claimant had been furloughed from the Hawthorne Gang. Mr. Basso, however, had been previously employed in the Belt Gang and was properly recalled to that Gang. Carrier also alleges that Claimant also failed to bid on the job posted (by Bulletin P-19) on March 16, 1981, and also chose not to exercise his seniority to displace Mr. Basso within fifteen days as provided in Rule 3-D-3(c).

                        Docket Number MW-25979


          "3-D-3. Increase in force--Trackmen.


          (a) When the number of trackmen in a section gang is increased, furloughed trackmen previously employed in such gang, who have complied with Rule 3-D-1, will be recalled for service in such gang in seniority order.


          (b) When the number of trackmen in an existing extra gang is increased, an extra gang is established, or additional trackmen are required in a section gang, after compliance with paragraph (a) of this rule, trackmen furloughed from the Supervisor's Sub-Division on which the increase in force is being made, who have complied with Rule 3-D-1, will be recalled to service in seniority order.


          (c) (Effective 6-1-58.) Trackmen in active service and furloughed trackmen may exercise seniority to displace junior trackmen within fifteen (15) days from the date such junior trackmen start to work. Trackmen desiring to exercise seniority as set forth in this Rule (3-D-3) must notify the Foreman or other supervisory officer in charge not less than twenty-four hours in advance of the starting time of the gang in which they desire to make displacement."


The key to this dispute are the facts with respect to the original pre-furlough positions of Basso and the Claimant and the application of those facts to Rule 3-D-3. Carrier has maintained that Basso was furloughed from a Section Gang (the Belt Gang) whereas Claimant was furloughed from the Hawthorne Gang. Organization party has introduced any documentary evidence to support their respective contentions with regard to the type of gangs involved (Section Gangs or Extra Gangs). The Board is unable to resolve that factual impasse. Since the terms of Rule 3-D-3(a) are in conflict with those in 3-D-3(b) the application has to depend on the facts; with the facts being indeterminate, the Board has no alternative but to dismiss the Claim. Neither party has submitted any factual backup for mere assertions, which are in conflict.

        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 respectively Carrier and Employes within the meaning of the Railway Labor Act as approved June 21, 1934;
                        Award Number 26486 Page 3

                        Docket Number MW-25979


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

        That the facts are in conflict.


                      A W A R D


        Claim dismissed.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        Nancy J. -Executive Secretary


Dated at Chicago, Illinois, this 9th day of September 1987.