AWARD 133 - ASSERTIONS VS. FACTS

Second Division Award No. 12553 (Fletcher)

"This statement woefully fails to satisfy minimum evidentiary requirements necessary to establish that Carmen's work has been assigned to Clerks. It does not mention one date that Stores Department employees did Carmen's work, nor does it mention a single item of work performed. In substance, all that the Board has before it is an allegation. This allegation is not supported by any evidence. Accordingly, the claim must be denied."

Fourth Division Award No. 3335 (Dolnick)

"Petitioner alleges that on the dates in the claim yard crews were supervised and given switching orders by either Trainmaster Bootman or Agent Latta or by both. There are no specific allegations. The record does not show what switching orders were given to the yard crew by either the Trainmaster or the Agent. Nor is there substantive evidence that Bootman or Latta supervised the yard crew on any of the claim dates. General allegations are mere assertions and not evidence."

Third Division Award No. 30719 (Wesman)

"The Organization submitted statements by numerous MofW employees support of its claim for the work at issue. The Carrier responded to those statements with assertions that they are incorrect. It did not present any evidence beyond those assertions to support its position. In Third Division Award 30064, this Board held:

"It is well established that under a Scope Rule as the one in question, the Organization has the burden of showing that the work in question has been customarily and traditionally performed by employees it represents. In this connection, the Organization submitted several statements from B&B employees…asserting that they have always done the [work at issue]…The Carrier, throughout the handling, asserted, without any documentary evidence, that the work had not been exclusively done by members of the Organization.'

"The Board, in weighing the competing assertions as to the past practice of others doing [the work at issue] at this location, must conclude that the Organization has satisfied its burden of proof. The employee affidavits are more worthy of consideration than the bald assertions of the Carrier….[Carrier] is in the unique position, as the party having made those work assignments, to show when the work was done…by other crafts.'

"In light of the foregoing, the Board finds that Carrier in the instant case has not carried its burden of persuasion."

Third Division Award No. 30643 (Wallin)

"…Mere assertions of ownership of the work are not sufficient to support a claim in the face of challenges to those assertions.'

Third Division Award No. 30639 (Vernon)

"It is the opinion of the Board that the evidence is insufficient to conclude that the Claimant was prevented from making a displacement for December 27. In this regard, the Organization relies on pure assertion. There are no statements or other kinds of evidence, as opposed to mere assertion, that the Claimant made specific inquiries which were ignored, falsely responded to, or otherwise thwarted. Lacking such evidence, the Board finds the factual elements necessary to sustain the claim lacking. Without such evidence the Claimant was an employee who was waiting to exercise displacement rights and, as such, was unavailable for service."

Third Division Award No. 30630 (Richter)

"In reviewing the claim, the record is void of any evidence as to the work PacRail is performing for Southern Pacific, Chicago and St. Louis Railroad Company. Mere assertions that non-clerical employees are performing work under the Scope Rule is not sufficient."

Third Division Award No. 30072 (McCabe)

We do know, or at least we can assume with reasonable certainty that some Supervisor did answer the phone, but as to what part of the conversation constituted a violation of the Agreement we have not been made a privy to. Assertions and allegations cannot be accepted as substitutes for evidence."

Second Division Award No. 12817 (Mason)

"It is well established that unsupported statements and contentions - without more - is of no evidentiary value. The burden of proof is on the one making the claim or contention. Mere words alleging that a violation has occurred are not proof. Inasmuch as it is the Board's conclusion that the work involved in this case was not reserved to the Claimant by either the language of the Classification of Work Rule or by historic performance by the Claimant or other employees, the advance notice provisions of Article II of the September 25, 1964 Agreement, as amended, were not violated."

Second Division Award No. 12822 (Mason)

"….the Organization must establish by more than mere declarations that the disputed work is expressly reserved to Laborers either in the Classification of Work Rule or by exclusive historical practice and performance. On the basis of the case file as found in this instance, the Organization has not met the required burden of proof."

Third Division Award No. 18607 (Rimer)

"In this case, however, the Carrier has not placed in the record any documentation or other evidence of any value to support its position that the Claimant did not possess "sufficient" qualifications for the opening. It has merely asserted this to be a fact, which does not make it so, neither has it produced any records from its own files to rebut or refute the records placed in evidence by the Organization." (emphasis ours)

Third Division Award No. 29773 (Mason)

"There is, of course, a difference between an allegation and evidence. Also, it is one thing when an allegation is made by one party and not denied by the other; it is quite another thing when an allegation is made by one party and denied by the other. When the latter occurs, a mere reiteration of the allegation is no substitute for evidence and proof to support the allegation."

Third Division Award No. 30414 (Mason)

"The Board cannot, and will not in this case, make a decision on the basis of presumption, conjecture or speculation. If the Organization's position is as strong as it argues, then it should have been an easy matter for it to have backed its position with something more than assertions and presumption."