NEW EVIDENCE NOT ADMISSIBLE AT BOARD (39)

Third Division Award No. 27638 (Marx)

"In response, the Organization provided signed statements from two employees contending that the Claimant had performed the piloting work on Friday, September 7, 1984. The Carrier provided no evidence on the property contrary to these statements. The Carrier offered a time record sheet for that date in its Submission, but the Board cannot consider this, as it was not presented on the property. Further, this time sheet does not demonstrate to the Board any proof of the Carrier's contention concerning the Claimant's work assignment immediately prior to September 9, 1984."

Fourth Division Award No. 3862 (Scheinman) is one of literally hundreds of National Railroad Adjustment Board Awards that have addressed the subject of new evidence not exchanged between the parties during the handling on the property. In Award No. 3862 the majority held in pertinent part:

"It is well established that this Board, absent an agreement between the parties, may not consider evidence or argument raised for the first time at the Board level. Since this evidence and argument were not part of the handling on the property, we have no alternative, but to exclude them from our deliberations."

A sampling of other awards on this issue are:

Third Division Award No. 18964 (Dugan)

"This Board, in a long continuous line of Awards, has repeatedly held that it is too late to supply the specifics for the first time in the submission to this Board because (1) it in effect raises new issues not the subject of conference on the property; and (2) it is the intent of the Railway Labor Act that issues in a dispute before this Board shall have been framed by the parties in conference on the property. See Award Nos. 13741, 15835 among others."

Third Division Award No. 19011 (Ritter)

"Consideration of these two affidavits was objected to by the Organization and this objection is sustained. These affidavits can not be considered for the reason that they were not introduced, discussed or handled on the property. The affidavits were obtained on December 20, 1970. The notice of intent to appeal arrived at this Board on August 25, 1970."

Second Division Award No. 6883 (O'Brien)

"However, in progressing its claim to this Board it is not enough for the Organization to allege that work was performed by supervisors in derogation of the contractual right of members of its craft to perform said work. Rather, since the burden of proof rests with the Organization, it is incumbent upon them, while the claim is being handled on the property to present probative evidence to the Carrier in support of its argument that the contract was violated. Both parties are precluded from proffering evidence for the first time when the claim is before this Board. If the evidence was not presented on the property then Section 3, First (i) of the Railway Labor Act prohibits it from being considered by this Board. Awards of all Divisions of the National Railroad Adjustment Board upholding this principle are legion. (See, for example, Third Division Awards 18006, 18137 and 19802).

"The Organization has attached to its submission two statements (exhibits B and C) which it states prove that supervisors were performing an actual visual and physical inspection of ladles. However, Carrier insists that this is new evidence not presented by the Organization in the handling on the property. We must agree with Carrier's contention since a thorough review of the record fails to disclose that said evidence was presented to the Carrier while the claim was being progressed on the property. Without this evidence, the record that was developed on the property, merely reveals a series of assertions and denials relative to what work was performed by supervisors. Consequently, in order for this Board to determine what, in fact, occurred would require speculation and conjecture on our part. This we are unwilling to do. Since the Organization has failed to establish by probative evidence what Car Inspectors' work was performed by supervisory personnel we are constrained to dismiss the claim for failure of proof."

Third Division Award No. 30460 (Mason)

"When the claim came to the Board, the respective Ex-Parte Submissions contained substantial evidence, argument and rule citation support from both parties which had not been made a part of the on-property handling of this claim. It is a fundamental principle that the parties to a dispute cannot prevail before the Board on the basis of allegations or issues that were not discussed during and made part of the handling of the claim on the property. Section 3, First (i) of the Railway Labor Act requires that all disputes must be 'handled in the usual manner' on the property before they may be submitted to the Board. This requirement is jurisdictional. The law requires a minimum of handling which the parties cannot waive. The objective of the Railway Labor Act is to require both sides to a dispute to come together on the property and make a complete, open and honest disclosure of their respective positions in an effort to reach agreement. It is impossible for the parties to comply with the requirements of the Act without disclosing to each other during the on-property handling all of the arguments and contentions specifically relied upon. The Board cannot, and will not in this case, consider issues, defenses and Rule citations not raised and made a part of the case record during the handling of the dispute on the property."

Third Division Award No. 29851 (Eischen)

"From evidence Carrier produced on the property, Carrier did not carry that burden. If Carrier had produced such evidence on the property, rather than de novo, this case may have been decided differently. However, it is well established that a party may not introduce arguments for the first time before this Board. Such tactics circumvent the Railway Labor Act's emphasis on resolving issues on the property and are flatly barred by Board Circular No. 1.

Third Division Award No. 30862 (Mason)

"In accordance with the Uniform Rules of Procedure of the National Railroad Adjustment Board, the Organization voiced objection to the introduction by Carrier of this new evidence and argument which had not been made a part of the on-property and handling of the dispute.

"The Board has long held that neither party to a dispute can prevail before the Board on the basis of allegations or issues that were not discussed during the handling of the claim on the property.

"Section 3 First (i) of the Railway Labor Act requires that all disputes must be 'handled in the usual manner' on the property before they may be submitted to the NRAB. This requirement is jurisdictional. The law requires a minimum of handling which the parties cannot waive. Section 2, First and Second, Railway Labor Act, require that carriers and their employees shall 'exert every reasonable effort to settle disputes' arising between them, and that such disputes 'shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized to so confer.'

"The highest federal courts have rules that such provisions in the Railway Labor Act establish minimum requirements to which carriers and employees must conform. The U.S. Courts of Appeals for the Second and Seventh Circuits (307 F. 2d 21, 41; 361 F. 2d 946, 954) have held that in order to satisfy these minimum requirements '..men of good faith must in good faith get together in a sincere effort to resolve their difference.' The Court of Appeals for the Second Circuit went on to say that '...the representatives of management should meet with those of labor. Each side should listen to the contentions of the other side and each side should explain its position clearly and honestly.'

"The U.S. Supreme Court (325 U.S. 711, 721 n. 12) has said that '...one of the statute's primary commands, judicially enforceable, is found in the repeated declaration of a duty upon all parties to a dispute to negotiate for its settlement. [Citations omitted] This duty is not merely perfunctory. Good faith exhaustion of the possibility of agreement is required to fulfill it.'

"Thus, the manifest objective of the Railway Labor Act is to require both sides to a dispute to come together on the property and make a complete, open and honest disclosure of their respective positions in an effort to reach agreement. It is impossible for a party to comply with the Railway Labor Act requirements without disclosing to the other side during handling on the property all of the arguments and contentions specifically relied upon. This fact has been repeatedly recognized by this Board.

Award 10789, Third Division

'. . .It is a well established rule that this Board will not consider contentions or charges which were not made during the handling of the case on the property. Award 5469 (Carter) . . .'

Award 12790, Third Division

'. . .It is well established that the Board will not consider new evidence or issues raised for the first time subsequent to the consideration of a dispute on the property by the parties. Therefore, we find that such evidence is not properly before us.'

Award 14641, Third Division

'Our well-settled rules of procedure require that we limit our consideration to the issues properly raised on the property. NRAB Circular No. 1, Award 11128 and others.'

Award 18656, Third Division

'It is so well settled as to require no citation that this Board, in adjudicating disputes, may not consider issues or defenses not raised by the parties in the handling of the dispute on the property.'

Award 19101, Third Division

'Upon presentation of the claim to this Board the Employes introduce argument to the effect that . . .No such contention or showing was specifically made during handling on the property, and Carrier objects to its injection at Board level.

'Carrier's objection must be sustained on the authority of a multitude of awards holding that only issues that were raised during handling on the property may properly be considered by the Board.'

Award 20540, Third Division

'We have noted Carrier's contention before our Board that in several instances in recent years similar work has been similarly performed at other places. The instances cited, however, differ from those raised during handling on the property and are therefore not properly before us. Similarly, Carrier's entrapment defense was not placed in issue on the property and when raised for the first time before us, comes too late.'

Award 22806, Third Division

'The Organization states in its submission that they did very little on the property to establish that the illness was bona fide. It maintains that the sick leave agreement does not place that requirement upon the employes. The statute and Rules and Procedures of the Board place a responsibility on both parties to fully develop the case on the property and the Organization cannot rely on the agreement to avoid that responsibility.'

"From our review of the record of this case, it is abundantly clear that Carrier's position before the Board is entirely new argument. At no time during the on-property handling of this dispute did Carrier refer to the Section 6 negotiation or to the provisions or alleged application of Addendum No. 13 or to the alleged modification or replacement of the clearly stated provisions of Rule 52(d). The Board cannot, and will not in this case, accept such new argument and issues in our consideration of the instant dispute."