The Third Division consisted of the regular members and in addition Referee Gerald E. Wallin when award was rendered.
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.
Form 1 Award No. 39028There is no dispute that the Claimant was the first person entitled to be called for the work opportunity in question. According to the Carrier, Roadmaster T. D. Sheffield attempted to call him for the assignment, but learned that he was not at home. As a result, the Roadmaster went on to contact the individual who performed the work. However, the position of the Organization and the Claimant is that the Carrier failed to call him. The Claimant maintains that he was available, but was not called.
Both parties presented statements from the relevant people to support their respective contentions.
Given the competing contentions, we are confronted with a conflict of material fact that was not resolved in the on-property record: Was the Claimant called by the Roadmaster or was he not? Our role is essentially appellate in nature and does not permit us to resolve such evidentiary conflicts. When, as here, we are confronted with such irreconcilable conflicts of material fact, we have no choice but to declare that the Organization's burden of proof has not been satisfied. As a result, we must deny the claim.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.