AWARDS 102 - ORGANIZATION FAILS TO PROVE THAT A SPECIFIC AGREEMENT RULE WAS VIOLATED - DENIED

Second Division Award No. 12201 (Roukis)

"In considering this case, the Board concurs with Carrier's position. In the absence of a clear showing that a specific rule was violated, we lack any justifiable basis for finding for Claimant. Since the record is bereft of provable details and a correlative demonstration that a specific provision of Controlling Agreement was violated, of necessity we must deny the Claim. There is plainly nothing in the record that establishes the relevancy and breach of any specific rule. This omission is a fatal defect."

Public Law Board No. 4093, Award No. 7 (Zusman)

"Our view of the record is that the Organization has failed to show any Agreement provision that restricts the Carrier from the action complained of herein. Nor has it provided any proof of unreasonable action on the part of the Carrier. There is no probative evidence that the Claimant was available and not called at both phone numbers. As such, the evidence of record fails to meet the Organization's burden of proof. Therefore, we find in the instant circumstances that the Carrier violated no provision of the Agreement and the case must be denied."

Second Division Award No. 12335 (Muessig)

"Rule 15, which is mainly controlling under the circumstances presented, provides that if no one bids on a position (the situation which arose in this case) the senior unassigned employee will be assigned and paid at the premium rate, as also provided by the applicable rates. We find that the Carrier followed the Rule. When so holding, we particularly note the Organization on the property never refuted the Carrier's position that `system' employees have been used in the past to fill temporary vacancies, nor did it provide a specific name of any unassigned employee who should have been assigned. Therefore, the Organization, on the property, has not shown that the Rule was violated."

Third Division Award No. 29600 (Wallin)

"In claims of this nature, it is well settled that the Organization has the burden of proof to establish the basis for the Claim. On this record, no specific rule or other provision of the Agreement has been successfully cited to support the Claim. Nor has the Organization's evidence established the existence of a past practice of paying for testing time or mileage in similar situations. Under the circumstances, the Organization has not met its burden of proof. The Claim, therefore, must be denied."

Third Division Award No. 30275 (McAllister)

"In denying the claim, the Carrier chiefly relies upon the last sentence of the Letter Agreement, quoted above. It is clear from a reading of the entire Letter Agreement and, in particular, the final sentence, that the parties intended to reserve the positions of Office Engineer and Material Engineer to employees represented by and paying dues to the Organization. There is no reference to the work performed by the incumbents of those positions.. In fact, the final sentence explicitly exempts these positions from all other Rules of the Agreement. While not specifically referred to, this would include the Scope Rule or any other Rule which would purport to reserve work to employees covered by the Agreement.

'"As the Organization has failed to demonstrate that the work which had been performed by the Claimant was reserved to employees covered by the Agreement, we must deny the claim.

Third Division Award No. 30597 (Richter)

"The facts are not in dispute. However, while this Board finds that an employee not covered by the Agreement performed clerical work, the Organization failed to cite a Rule that provides three hours pay at the overtime rate to the senior available off-duty clerical employee. In fact in its handling on the property and before this Board, the Organization only cites Rule 1, 'Scope and Work of Employees Affected.'

"The Organization failed to meet the burden of proof by failing to cite a Rule which would provide for the payment claimed."