In summary, the Carrier has shown that the Petitioner's claim should be denied for the following reasons:

1. There is nothing in Maintenance of Way Employes Scope Rule to support the claim.

2. The handling of Company material belongs to Stores Department employes and spelled out accordingly in Scope Rule.

3. The disposal of debris is not "maintaining of way".

4. This is strictly a Stores Department responsibility in both work and supervision.

5. No Engineering Department employe-either supervisor or otherwise directing specific placement of the debris, as alleged by Petitioner.

6. Debris not dumped at this location to make the land usable -but because no other location to do so.

7. The Petitioner has no proof in support of its position.

The Carrier respectfully requests your Honorable Board to deny this claim because there is no possible merit nor rule to support the Petitioner's position.

All data and arguments contained herein have been presented to the Petitioner in conference and/or correspondence.

(Exhibits not reproduced.)

OPINION OF BOARD: The claim is based on contentions that work in connection with collecting, loading, unloading and disposal of dirt and debris has been maintenance of way work; that the performance of such unloading work at the Billerica Shop Yards was for the purpose of filling in and making usable Carrier's property adjacent thereto; that in recognition of the work as maintenance of way work, Work Equipment Operators unloaded the dirt and debris prior to the change of the disposal area to Billerica Shop Yards in 1951; and that the work in question has been performed at the Billerica Shop Yards by employes outside coverage of the applicable Agreement under the direction of a Track Supervisor and Track Foreman. Carrier asserts that loading and disposal of dirt and debris has not been exclusive maintenance of way work; that the unloading of such material at the Billerica Shop Yard was not for the purpose of filling in and making usable adjacent land but because there was no other location on the railroad where debris could be dumped; that the assignment of the work prior to the change of the disposal area in 1951 was not in recognition of any exclusive right thereto; that the work in question has not been performed under the direction of a Track Supervisor and Track Foreman. In its Submission dated November 16, 1955, copy of which was forwarded to Petitioner, according to the record, Carrier asserted that "The Petitioner has no proof in support of its position".

Since the Agreement relied on does not expressly confine the disputed work to Claimants, these conflicting contentions and assertions present substantial and material factual disputes which cannot be determined on the

record because of the lack of evidence concerning them. "We have many times held that mere assertions cannot take the place of proof." Award 5066. And this Division has also repeatedly held that the burden of proving a claim rests on the party seeking its allowance. Awards 8206, 8376, 8486. Particularly pertinent here are the observations of this Division in Award 8486 where it was said that:

"The Railway Labor Act did not design that proceedings before the several divisions of the Adjustment Board should be technical but some actual proof besides uncorroborated statements which have been denied at least by implication in contrary statements is necessary to assist the Board in a proper decision. In this case there is none."

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the record does not establish that the Agreement was violated.

AWARD