son and Track Laborer Seebern Brannan did not renew croasties or put crossties in the track between Milepost 236-B and Milepost 237-B on August 12, 1960 as alleged. In fact, they were not in the immediate vicinity of Mileposts 236-B and 237-B on August 12, 1960. As pointed out by Carrier's Assistant Chief Engineer in his letter of November 25, 1960, to the Brotherhood's General Chairman (Carrier's Exhibit No. 8), on August 12, 1960, Assistant Track Supervisor Simpson went over the line between Lake City, Florida and Valdosta, Georgia, and did not go near Mileposts 236-B or 237-B. He denied emphatically that the work was performed as alleged.

The work not having been performed as alleged, there cannot possibly be any basis for the claim which the Brotherhood here attempts to assert.

The evidence is, therefore, crystal clear that the effective agreement was not violated, as alleged by the Brotherhood, and that the claim is without basis.

CONCLUSION

Carrier has shown that:

(a) Claim should be dismissed by the Board for want of jurisdiction, because (1) it was not presented and handled through the usual appeal channels on the property as required by the Railway Labor Act and Rules of Procedure of the Adjustment Board, (2) the Brotherhood has waived any right to now cite Article V of the Agreement of August 21, 1954, which it now relies upon, and (3) the Brotherhood is now barred from creating issues at variance with the issues from what they were on the property.

(b) The effective agreement was not violated as alleged by the Brotherhood, and the claim is without basis.

The above expressed conclusions under (a) being fully supported by prior awards of the several Divisions of the Board, claim should be dismissed by the Board for want of jurisdiction. However, if, despite this fact, the Board assumes jurisdiction, it cannot do other than make a denial award, for an award of any other type would be contrary to the effective agreements.

(Exhibits not reproduced.)

OPINION OF BOARD: The facts in this case are not so much in dispute as they are unascertainable.

The Employes claim that the Carrier violated the Agreement with the Brotherhood of Maintenance of Way Employes when on or about August 12, 1960, it assigned or otherwise permitted an Assistant Supervisor and his motor car operator to renew certain crossties in the track. Absolutely no facts are presented by the Employes to show the circumstances or conditions under which this work was alleged to have been performed. In fact, when the Carrier showed by substantial evidence that the Assistant Supervisor and his motor car operator were not even in the vicinity where the work was alleged to have been performed on the day stipulated, the Employes countered that "it is possible the work could have been performed on August 11th." The strongest statement in support of the claim (if, indeed, it can be called support) is the statement of the General Chairman that I "understand" the Assistant Supervisor and his motor car man renewed crossties in the track between Mile Post 236 and 237-B on August 12, 1960.

More than this is required to perfect a claim even before this Board which is, or should be, quite liberal in accepting broad pleadings and general argument. The claim, therefore, must be denied for failure of supporting evidence, which it was the duty of the Employes to introduce.

The Employes and the Carrier discussed at length in the record before the Board the procedural question whether the claims should be sustained because of the Carrier's admitted failure to give reasons for denying the claims, as required by Article V of the August 21, 1954 Agreement. The Employes' contention that the claims should be so sustained was not advanced in the latter stages of this proceeding in recognition of recent awards (relied on here) which hold that rights under Article V are procedural and not jurisdictional in character and if not asserted on the property (as they were not asserted here) such rights are waived. Awards 10684 and 11178 and Second Division Award No. 3858. Accordingly, Employes' position that the claim should be sustained by reason of Carrier's failure to observe the requirements of Article V of the 1954 Agreement should be denied.

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 Agreement was not violated.

AWARD

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary