"Claim of the System Committee of the Brotherhood that:

(1) The Agreement was violated when the Carrier called and assigned junior employes J. Reed and P. Guzman to perform overtime service (operate tamper in the replacement of crossings) in the vicinity of Elvas Tower on October 24, 1999 instead of calling and assigning Mr. J. W. Brown (Carrier's File 1215199 SPW).

(2) As a consequence of the violation referred to in Part (1) above, Claimant J. W. Brown shall now be compensated for twelve (12) hours' pay at his respective time and one-half rate of pay."

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

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

This dispute involves an overtime assignment to operate a Class 6a Tamper on Sunday, October 24, 1999 which the Organization alleges should have been made to the Claimant based upon his seniority rather than to the junior employees utilized. The record contains two e-mail statements from the Carrier's supervisors involved in such assignment written within a month of the incident, including one from Engineering Supervisor Davis who states that he asked for volunteers to work this overtime at the job briefing on Friday morning, October 22, 1999, and, despite being present, the Claimant failed to come forward or indicate his desire to work the overtime. The correspondence on the property also includes a written statement from the Claimant dated one year after the overtime in issue, indicating that Davis only asked for a Speed Swing Operator to work the October 24 overtime at the morning briefing, never mentioning a Tamper Operator, and sought no other volunteers. The Claimant asserts that the employees assigned the disputed overtime said that they were asked by a Foreman on Thursday night, October 21, 1999.

The Organization contends that, even if the Carrier sought volunteers at the morning briefing as alleged, it failed to follow the proper procedure in offering overtime by seniority, asserting that the Claimant should have been asked first, relying upon Third Division Awards 20120 and 19758. The Organization argues that the Carrier's offer of nine hours pay on the property is a tacit admission of liability, and argues that there is no dispute that the junior employees worked for 12 hours at the overtime rate, which is the appropriate remedy.

The Carrier argues that, at best, there is a fundamental dispute in material facts presented in this case. Pointing to the statements of Davis and the Claimant, it notes that Davis asserts that the Claimant was offered the same opportunity to work the disputed overtime as any other employee, but failed to come forward and express any interest in the assignment until after the fact. The Carrier points out that the Claimant acknowledges that Davis did ask for volunteers of some sort at the briefing. On the other hand, the Claimant denies that Davis asked for volunteers in general or for a Tamper operator, and states that he was never offered the

opportunity to work this overtime. The Carries relies upon Third Division Awards 33895, 33487, 30593, 28790, 26406, and 21436 in arguing that the Board must dismiss this claim because it has no means of resolving this irreconcilable dispute of facts. The Carrier also contends that its manner of offering overtime in this instance complies with its contractual seniority obligations.

Initially we note that the Organization has not established a per se violation of the Agreement by the manner in which overtime was admittedly offered to this group of employees on October 22, 1999. A careful review of the record convinces the Board that this case does present an irreconcilable dispute of material fact with respect to the determinative issue of whether the Claimant was offered the opportunity to work the disputed overtime. We have no way of measuring the validity of the Claimant's statement or that of Supervisor Davis. As repeatedly noted by the Board in such circumstances, we function as an appellate body and have no way of resolving evidentiary conflicts or factual disputes. See Third Division Awards 28790 and 21436. Because this dispute of fact prevents the Organization from sustaining its burden of proving that the Carrier violated the Agreement as alleged, the claim must be dismissed. See Third Division Award 36406.

AWARD