Form 1

NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION

Award No. 33626
Docket No. MW-32547
99-3-95-3-453

The Third Division consisted of the regular members and in addition Referee Martin H. Malin when award was rendered.

(Brotherhood of Maintenance of Way Employes

PARTIES TO DISPUTE :

(CSX Transportation, Inc.

STATEMENT OF CLAIM :

"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier allowed junior

employee J. T. Wilson to perform overtimeworkon Friday, August 26,

1994 operating a spiker machine, instead of assigning Mr. D. E.

Manear who was senior and available [System File SPGTC

9223/12(94-849) CSX].

(2) As a consequence of the above-stated violation, Claimant D. E.

Manear shall be allowed ten (10) hours' pay at the SPG Class `A'

Machine Operator's time and one-half rate."

FINDINGS :

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

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved

herein.

Parties to said dispute were given due notice of hearing thereon.

On August 26, 1994, the Claimant was a Machine Operator assigned to System
Form 1 Page 2

Award No. 33626 VW
Docket No. MW-32547
99-3-95-3-453

Production Gang SXT6, assigned to operate a spike driver machine. On that date, the ·r'
Carrier assigned another Machine Operator who had less seniority than the Claimant to
work tenhoursofovertimeontheClaimant'smachine. The Organizationcontendsthatthe
Claimant was entitled to the overtime assignment, pursuant to Section 7 of the System
Production Gang Agreement.

Section 7(B) provides:

"The right to work overtime, when required on System Gangs, will accrue
first to the incumbent of the position of which the overtime is required. If
declined by the incumbent, overtime will be performed by the senior qualified
employee in the System Gang indicating a desire to work overtime. If no
employee desires to work overtime and overtime is required, the junior
qualified employee in the System Gang involved will work the overtime."
The Organization submitted a statement from the Claimant relating that on August
25, 1994, he advised his Foreman that if his machine were to be used the following day,
which was one of his rest days, he wanted to work overtime. However, the Carrier
submitted a statement from the Claimant's supervisor relating that the Claimant was asked
and refused the overtime available on August 26, 1994. The record thus presents us with
an irreconcilable dispute as to the facts. As an appellate body, we are not in a position to
take testimony, evaluate witness credibility and resolve such factual disputes. Faced with
such a situation, we have no choice but to dismiss the claim. See e.g., Third Division Award
33416.

AWARD

Claim dismissed.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimants) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division

Dated at Chicago, Illinois, this 16th day of November 1999.