AWARDS 75 - CARRIER FAILS TO FILE EXPARTE SUBMISSION TO BOARD

Fourth Division Award No. 4761 (Simon)

"Petitioner, a Special Agent, was assessed a forty-five (45) day suspension following a Hearing at which he was charged with insubordination, discourteous discharge of duty and quarrelsome or otherwise vicious behavior. A Claim was progressed on behalf of Claimant through the appeal process set forth in the Agreement. Claimant subsequently served a Notice of Intent to file a Submission before this Board. His Ex Parte Submission was filed on January 27, 1990. The Carrier did not file a Submission in its behalf.

"The Carrier is precluded from advancing any argument before the Board as Circular No. 1 provides for the Submission as the means of introducing all argumentative facts and evidence. It further states:

"`The parties are, however, charged with the duty and responsibility of including in their original written submission all known relevant, argumentative facts and documentary evidence.'

"The party bearing the burden of proof in a dispute must still meet that burden to prevail, notwithstanding the failure of the other party to file a Submission. In this dispute, the Carrier carries the burden of proof as this was a disciplinary matter. Absent a Submission from the Carrier, we must conclude it has failed to meet its burden of proof. The Claim, therefore, must be sustained."

Third Division Award No. 14891 (Zumas)

"In this docket, the Carrier has failed to file either an initial submission or a response to the Organization's Submission; and a failure to do so leaves the position and assertions of the Organization, which adequately support the claim, unchallenged and uncontroverted. The claim, therefore, must be sustained."

Third Division Award No. 24352

"In this docket, the Carrier has failed to file an ex parte submission and failure to do so leaves the position and assertions of the Organization, which adequately support the claim, unchallenged and uncontroverted. The claim, therefore, must be sustained. (Awards 14891, 24020, 24021 and 24037)"

Third Division Award No. 24037

"In this docket, the Carrier has failed to file an ex parte submission and failure to do so leaves the position and assertions of the Organization, which adequately support the claim, unchallenged and uncontroverted. The claim, therefore, must be sustained. (Awards 14891, 24020 and 24021)"

Third Division Award No. 24021

"In this docket, the Carrier has failed to file an ex parte submission and failure to do so leaves the position and assertions of the Organization, which adequately support the claim, unchallenged and uncontroverted. The claim, therefore, must be sustained. (Award 14891)"

Third Division Award No 24020

"In this docket, the Carrier has failed to file an ex parte submission and failure to do so leaves the position and assertions of the Organization, which adequately support the claim, unchallenged and uncontroverted. The claim, therefore, must be sustained. (Award 14891)"

Third Division Award No 30270 (Eischen)

"We note than the Organization made a timely filing of its Ex Parte Submission of dispute to the Third Division, but Carrier failed altogether to file any Submission with the Board. Carrier's failure to file requires the Board to sustain the claim as presented. In effect, Carrier chose not to refute the Organization's position. It should be noted that in sustaining the claim on this ground, we neither express nor imply any opinion concerning the underlying merits of the dispute."

Third Division Award No 31793 (Fletcher)

"In this docket Carrier has failed to file an Ex Parte Submission, and its failure to do so leaves the positions, assertions and proofs of the Organization, which adequately support its claim that the Agreement was violated, unchallenged and uncontroverted. The claim must therefore be sustained as presented.

(See Awards 14891, 24020, 24021, 24037, 24352, and 26525 of this Division, for a similar conclusion when Carrier failed to file a Submission with the Board.)"