AWARD 138 - BURDEN OF PROOF ON PETITIONER

First Division Award No. 24414 (Richter)

"It is clear that the answer to the Carrier question is yes. The organization failed to meet the burden of proof that the Agreement was violated."

Second Division Award No. 12674 (Cannavo)

"The Board finds that the Organization did not meet its burden of proof and thereby did not establish a violation of Rule 10."

Second Division Award No. 12701 (Zusman)

"The burden of establishing the case with evidence lies with the Organization. Its failure to meet that burden compels us to deny the Claim (Second Division Awards 12011, 11781, 11045, 8877 and 8548)."

Second Division Award No. 12702 (Zusman)

"It is a firm conclusion of the Board that the Organization has failed to demonstrate Agreement or practice supporting its claim. A review of the record as fully developed and disputed on the property lacks sufficient probative evidence to support an Agreement violation by the Carrier. The Claim must be denied for lack of proof in these instant circumstances where the merits of the issue have not fully been joined."

Second Division Award No. 12811 (Muessig)

"It is well established that the Organization has the burden of proof in cases like this. The Board, based on the evidence presented at this level, has no way of resolving this evidentiary conflict. Therefore, the Board has no alternative but to dismiss the claim."

Second Division Award No. 12813 (Muessig)

"With respect to the substance of this claim, the Organization has not met its burden."

Second Division Award No. 12812 (Muessig)

"We agree with the Carrier in this matter. The Organization has not met its burden to present a prima facie case."

Second Division Award No. 12819 (Muessig)

"The Board, following a careful review of the record, finds that the Organization has not met its burden of proof."

Second Division Award No. 12824 (Mason)

"The Organization has failed to meet its burden of proof in this case. There has been no causal nexus demonstrated between the transfer of employees and positions to Waycross and the subsequent furlough of employees at Waycross."

Second Division Award No. 12821 (Mason)

"The Organization, as the moving party in this dispute, has the initial and fundamental burden of identifying the specifics and particulars of the incident or incidents which it alleges are in violation of the negotiated Agreements. In its initial letter to the Carrier, it contended that subcontracting violations had allegedly been occurring '…during the period of the effective date of the transfer of work…up to the present time…' and yet it did not identify even one specific incident which had allegedly occurred during that two-year period.

The Board cannot ignore the fundamental responsibility of the moving party to a dispute to make a prima facie case of violation before the burden of responsibility to act shifts to the respondent party. As was ruled by SBA No. 570 in Award 1060:

'It is not enough to merely detail arguments expressing disagreement with a position taken. To be persuasive, some articulation, supported by at least minimal elements of evidence, must be made. Such articulation and evidence is absent here."

Third Division Award No. 30094 (Duffy)

"During the handling of the dispute on the property, the Carrier furnished a statement by the Director Engineering Materials, that, while maintenance of way employees had picked up materials and supplied from vendors in the past, other craft employees as well as supervisors have also picked up supplies and materials as needed. The Organization did not come forward with any credible evidence to rebut this material assertion, and we conclude that it has failed to establish exclusive rights to the work in question. Under well-established precedents of the Board, we must accordingly deny the claim."

Third Division Award No. 30095 (Duffy)

"While the Organization made conclusionary allegations that supervisors were performing work exclusive to the craft, the Organization did not provide any evidence to buttress its contentions. Under well-established precedents of the Board, we must accordingly deny the Claim."

Third Division Award No. 30099 (Fletcher)

"Carrier's assertions have not been refuted in this record. The Organization, as petitioner herein, is obligated to make a showing as to what work subject to its Agreement is being performed by strangers to the Agreement, following the abolishment. This has not been done. Accordingly, the claim will be denied."

Third Division Award No. 30106 (LaRocco)

"This Board must deny the Claim for lack of proof. While the record contains some evidence that the Carrier utilized a taxi cab to transport crews on the holiday either to or from the Milwaukee Depot, the record is void of any evidence that the cab company hauled a crew during Claimant's assigned hours. Absent evidence to prove this salient fact underlying the claim, the Board need not address whether or not use of the taxi cab company to transport crews on a holiday when all clerical positions were annulled was a violation of the Scope Rule."

Third Division Award No. 30514 (Duffy)

"This same issue was the subject of a previous arbitral proceeding between the parties. In Award No. 3 of Public Law Board No. 4138, Referee Zumas concluded as follows:

'The Organization has failed, as is its burden, to establish that welders performed track subdepartment work in violation of the Agreement. The Organization's mere assertion that Osborne and Levan performed track subdepartment work is not sufficient to support the claim.'

Under the circumstances present in this case, we are constrained to reach a similar conclusion, and accordingly find that the Organization has failed to carry its burden of proof in this matter."

Third Division Award No. 30591 (Gold)

"This Board is unable to determine from this record whether Carrier, in fact, failed to call Claimant. We have held in numerous other Awards that where there is a dispute in facts, it falls to the moving party to present sufficient evidence of a probative nature to convince the Board that its version of events is correct. The evidence in this case falls far short of meeting that burden. As a consequence, the claim must be dismissed."

Third Division Award No. 31237 (Seidenberg)

"The Claimant and the Organization in the record did not present any facts to support its allegations of Rule violations. In short, the Organization failed to meet its burden of proof to sustain the claim."

Third Division Award No. 30605 (Wesman)

"With respect to the merits of the case, however, the Organization has not sustained its burden of persuasion. The Organization alleged that Carrier intentionally misrepresented the position at issue in the advertisement: that is encompassed duties reserved by the Agreement to Track Subdepartment employees. There is no showing on this record that Carrier's advertisement of this position was a ruse for awarding Track Subdepartment work to a B&B Subdepartment employee. Nor has the Organization established that the work at issue is reserved to Track Subdepartment employees either by clear contract language or by long-standing system wide custom and practice. (See, Third Division Award 26236). Accordingly, the Board finds no basis for sustaining this claim."

Third Division Award No. 30598 (Richter)

"This Board has consistently held that the burden of proof is upon the Organization to show that work performed by third parties was with the consent and approval of the Carrier. The record is void of any evidence that the Carrier authorized the work to be done by Amtrak."

Third Division Award No. 30593 (Gold)

"This Board has no means for determining what occurred in this case. Given that Claimant bears the burden of proof here, and has failed to meet that burden, his claim must be dismissed. We have so held in numerous Third Division Awards. (See Third Division Awards 28988, 27738, 26428, 26291, 26200, and 25978)."

Fourth Division Award No. 4949 (Euker)

"Managerial decisions regarding safety will only be second guessed where those decisions appear to be orchestrated by a clear and evident attempt to circumvent the Agreement. The Organization has asserted, but not proven that to be a fact in this case, so the claim must be denied."

Third Division Award No. 35077 (Meyers) (CSX)

"In order to sustain discipline issued to an employee, the Carrier must present substantial evidence to support a guilty finding. In this case, the Carrier simply failed to present sufficient evidence to show that the Claimant violated any Rules on December 10, 1996."

Second Division Award No. 13497 (Newman) (Springfield Terminal)

"The facts presented in the instant claim cannot be said to prove that the Claimant's 1996 attendance record was excessive when judged against an absolute standard of reasonableness."

Second Division Award No. 13498 (Newman) (Springfield Terminal)

"Under the circumstances of this case, we must agree with that conclusion, and find that the Carrier failed to meet its burden of proving by substantial evidence that the Claimant's improper job performance was the proximate cause of the defective brake shoes found 10 days later."

Third Division Award No. 34066 (Wesman) (National Railroad Passenger Corp.)

"The Board reviewed the entire record and finds that the Carrier did not meet its burden of persuasion on any of the charges leveled against the Claimant."

Third Division Award No. 33983 (Wesman) (National Railroad Passenger Corp.)

"The Board finds that the Carrier did not provide evidence substantial enough to warrant dismissal."

First Division Award No. 25119 (Vernon) (Union Pacific)

"With this kind of uncertainty, and no evidence he checked with other crews, it is difficult to credit his bald assertions that the Claimant was the last to use the unit."

First Division Award No. 25129 (LaRocco) (Union Pacific)

"The Carrier bears the burden of proving with substantial evidence that the Claimant was not wearing his hearing protection while operating his yard engine on July 9, 1997. In this particular case, the testimony of the Director of Track Maintenance, standing alone, does not constitute substantial evidence proving the Claimant's guilt."

Third Division Award No. 34223 (Newman) (CSX)

"Removal for such a long term employee with a clean record is not in accord with accepted principles of progressive discipline, and is more punitive than corrective in nature."

Third Division Award No. 35048 (Simon) (CSX)

"We find no evidence to support the Carrier's conclusion that the Claimant was not qualified for this position. Even if the burden of proof had been upon the Organization, we would conclude that the Carrier's determination was entirely without basis, and therefore unreasonable.

Third Division Award No. 35032 (Peterson) (CSX)

"It is also significant, as likewise brought out at the Hearing, that the description of the driver of the company vehicle as provided by the complainant was not shown to be sufficiently accurate for it to be concluded that it was, in fact, the Claimant that she had described in her complaint to the Carrier."

Third Division Award No. 35026 (Meyers) (Union Pacific Railroad)

"It is clear that the Claimant was injured as a result of poor performance on the part of another employee. However, there is insufficient evidence in the record to support the finding that the Claimant acted in violation of the appropriate procedures or Safety Rules on the date in question and that the Claimant's behavior was responsible for his injury."

Third Division Award No. 35019 (Eischen) (Soo Line RR)

"It is manifest that Mr. Howard erred in his reading of the governing Agreement time provisions, because the literal language of Rule 20 gave the Claimant 20 days after the disqualification to make his Rule 20 request."

Public Law Board No. 5902, Case 24 (Meyers) (UTU/Norfolk Southern)

"This Board has reviewed the record in this case, and we find that the Organization has failed to meet its burden of proof that the Carrier violated the agreement when it failed to pay Claimant Siesel $15.00 additional pay for each of the fifteen days he was required to train another yardmaster who was learning the duties and responsibilities of the yardmaster position."

Public Law Board No. 5902, Case 23 (Meyers) (UTU/Norfolk Southern)

"It is fundamental that the Organization bears the burden of proof when making a claim for pay. In this case, the Organization and the Claimant had failed to show that the Carrier violated the agreement by not paying the Claimant for the period from January 19,2002 to February 2, 2002."

Public Law Board No. 6076, Awd. 17, Case 17 (Lynch) (UTU/CSX Trans.)

"In a situation of this kind it is the duty of the Organization to provide proof to support the allegation that the Yard Clerk performed Yardmaster duties on the date in question."