YARDMASTER DEPARTMENT AWARDS

UNCHALLENGED STATEMENTS MADE ON PROPERTY MUST BE ACCEPTED AS FACT (38)

AWARD # REFEREE RAILROAD
Third Division Award 12840 Hamilton Belt Railway of Chicago
Third Division Award 14385 Wolf St Louis - San Francisco
Third Division Award 20041 Sickles Burlington Northern
Third Division Award 20109 Eischen Port Terminal RR Association
Third Division Award 29138 Muessig CSX Transportation (SCL)
Third Division Award 29216 Muessig CSX Transportation (L&N)
Third Division Award 29433 Duffy CSX Transportation (SCL)
Third Division Award 29850 Duffy Conrail
Third Division Award 29859 Eischen CSX Transportation (L&N)
Fourth Division Award 2863 Weston Southern Pacific
Fourth Division Award 3480 McBreaty Norfolk and Western
Fourth Division Award 4771 Zusman Chicago & North Western
Public Law Board 4093, Awd 16 Zusman CSX Transportation

Third Division Award No. 12840 (Hamilton) 

"Therefore, the instant question seems to be concerned primarily with the past practice. The employes' assertion that they have performed this work for a long period of time is totally undenied and unchallenged by the Carrier. It is the opinion of the Board that the employes have met the burden of proof in regard to the essential elements of this claim; that the same stand unrefuted, and that the claim should be allowed."

Third Division Award No. 20041 (Sickles)

"On three occasions, during handling on the property, the Claimants stated that they regularly performed work in Portland on a five day a week basis. The Carrier never denied or rebutted that allegation, but was content to rely on its assertion that Roberts had no specific work limits and that he was senior to Claimants. Awards of this Division have concluded that when material statements are made by one party and not denied by the other party, so that the allegations stand unrebutted, the material statements are accepted as established fact (especially when there is both time and opportunity to deny). See Awards 9261 (Hornbeck), 12840 (Hamilton), 14385 (Wolf). See also Awards 14399 (Lynch), 15053 (Franden) and 18605 (Rimer)."

Fourth Division Award No. 2863 (Weston)

"In this instance, however, unlike other cases involving the parties, Petitioner has described the kind of supervision that is in issue, specifically Carmen being directly instructed by Wells and Kilgore as to where to put blocks, wedges and chains, where to hook up, when to move trucks and make lights. Carrier has not specifically denied that such instructions were given or effectively explained them away. This is the type of first level supervision that would appear to belong to the Supervisors and it is not of the overall managerial variety that a General Foreman might reasonably be expected to exercise."

Fourth Division Award No. 3480 (McBreaty)

"Such argument was presented to Carrier in Petitioner's letter of September 6, 1976, and, for whatever reason, Carrier failed to challenge or deny that statement on the property and in its submission to this Board.

"Consequently, the Board finds that the instructions issued by Carrier's Trainmaster to `road crews' on November 27, 1975, pertaining to the yarding of deliveries by the LTRR, switching by an extra crew, bringing 89 coal cars to tracks N-1 and N-4, taking 27 hoppers off C-13 to Shinrock, and bringing 81 MTY hoppers from CEI to WLE-Main Track, were indeed Yardmasters' work in conformity with Carrier's Operating Rule 520 the Scope Rule, and prior Awards of this Board. (See, for example, Fourth Division Award 2032)."

Third Division Award No. 20109 (Eischen)

"Carrier defends its denial of the claim on the ground that Claimant failed to provide Carrier with a correct telephone number. The record before us, however, reveals substantial confusion among Carrier personnel responsible for calling Claimant regarding the telephone number they called on the day in question, i.e., whether the calls were made to his old number or to his current number. In this connection, Claimant's contention that he had several times prior to December 25, 1971 been called to his assignment by Carrier at his current correct number stands unrefuted."

Third Division Award No. 14385 (Wolf)

". . . An assertion which is not denied although there is both time and opportunity to deny it must be deemed uncontroverted and, therefore, proof of its substance. . . ."

Public Law Board No. 4093, Award 16 (Zusman)

"The Board is further confronted with procedural issues and a record before us that constrains our ability to reach the merits. This is because the Organization's assertions on the property were not refuted. As stated in Third Division Award 14385:

"`...An assertion which is not denied although there is both time and opportunity to deny it must be deemed uncontroverted and, therefore, proof of its substance...'

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"The Carrier did not deny on the property that both of it's (sic) hearing officers were prejudiced against the Claimant. The Carrier did not deny that the hearing was called `out of prejudice' against the Claimant. Nor did it ever deny on the property that the discipline to be handed down to the Claimant was discussed before the alleged charges were heard before the Board of Inquiry. We have further reviewed the Organization's allegation that Board members asked leading questions. That allegation was not denied by the Carrier in any correspondence on the property and is evidenced in the transcript. While this Board prefers to rule on merits, it is constrained to sustain a claim where, as here, the Carrier has failed to refute allegations which when taken as a whole indicate Claimant did not receive a fair and impartial hearing. The Board is constrained by this record to sustain the Claim without consideration of merits."

Third Division Award No. 29138 (Muessig)

"The Carrier, by detailed letter dated October 19, 1989, denied the Organization's claim. The substance of the Carrier's denial was never refuted on the property. Numerous Awards have held that when material statements are made by one party and not denied by the other party, the statements stand as unrebutted and are accepted as established fact. This basic principle is particularly applicable when there is both time and opportunity to deny any allegation or similar contention."

Fourth Division Award 4771 (Zusman)

". . . The Carrier never denied the charge that Mr. Koch played all relevant roles of charging, assessing guilt and as Highest Officer reviewing and concurring with his own decision without any prior independent review by an additional Carrier official. We find that this action substantially denied the Claimant his procedural rights. Carrier never denied the repeated assertion of multiple roles even though it had ample time to do so. We find ourselves forced by precedent and the language of the Rule to sustain the Claim to the extent of reinstatement with unimpaired rights and seniority, and with payment for lost time under the Agreement (Fourth Division Awards 4042, 3746, 2566."

Third Division Award No. 29216 (Muessig)

"The Carrier's statement went unrebutted and, therefore, stands as fact. On that basis, the Claim is denied."

Third Division Award No. 29433 (Duffy)

"We thus follow well-established precedent that when material statements are made by one party and not denied by the other party, thereby leaving the contentions standing as unrebutted, the material statements are accepted as fact, particularly when there is both the opportunity and the time to rebut the contention."

Third Division Award No. 29850 (Duffy)

"The Organization claims that the positions should have been awarded as Machine Operator - Class 3, and asserts a past practice on the property of so awarding the positions. The Carrier, on the property, contended that the positions had always been advertised and awarded as Trackman positions, and the Organization provided no evidence to rebut this assertion. Under well-established precedents of the Board, this material assertion thus stands as established fact and we will deny the claim.

Third Division Award No. 29859 (Eischen)

"The Organization never rebutted the Carrier's emergency defense in handling on the property. An unrefuted material fact must be taken as true. See Special Board of Adjustment No. 540, Award 660.

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Last modified: April 29, 2005