THIRD DIVISION

(Supplemental)




PARTIES TO DISPUTE:

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:






EMPLOYES' STATEMENT OF FACTS: On February 20, 1962 a carpenter from the B&B shop at Clyde, Illinois painted two (2) salt boxes with aluminum paint. These two (2) salt boxes had been constructed by carpenters in the shop at Clyde, Illinois. Used painted lumber was used in the construction of these salt boxes. The dimensions of these salt boxes are 3 ft. 6 in. wide, 3 ft. 6 in. high and 6 ft. long.


















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used. There has been no change in this practice for 35 years, and there has been no change in any provisions of the agreement that would modify or change this well recognized practice.








If the Board will give consideration to these facts, it can reach but one decision, namely denial of the claim in its entirety.



OPINION OF BOARD: This Claim was initiated on the property by the following letter, from Claimant herein, to Carrier's Superintendent:


Throughout processing of the Claim on the property the Organization alleged that the painting of the boxes by employes of B&B Department violated the Agreement; but, at no time pointed to what Rule(s) of the Agreement was allegedly violated. Carrier, during this processing, replied that: (1) the painting of the boxes did not involve bridges, buildings or structures; (2) rejected the allegation that painters have the exclusive right to paint boxes; (3) asserted it was unaware of any rule in the Agreement which "prohibits B&B employes from applying a prime coat as in this case;" and (4) the paint applied was a prime coat.
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We are of the opinion that when, on the property, a claim is made stating that an agreement has been violated without specifying the rule(s) allegedly violated and Carrier responds that it is not aware of any rule prohibiting the action complained of, the burden shifts to the Organization to particularize the rule(s).


It is axiomatic that: (1) the parties to an agreement are conclusively presumed to have knowledge of its terms; and (2) a party claiming a violation has the burden of proof.


When a respondent denies a general allegation that the agreement has been violated for the given reason that it is not aware of any rule which supports the alleged violation, the movant, in the perfection of its case on the property, is put to supplying specifics. It is too late to supply the specifics, for the first time, in the Submission to this Board-this because: (1) it in effect raises new issues not the subject of conference on the property; and (2) it is the intent of the Act that issues in a dispute before this Board, shall have been framed by the parties in conference on the property.


Upon the record, as made on the property, we are unable to adjudicate the merits of the alleged violation. We will dismiss the Claim:


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;


That upon the record made on the property we are unable to adjudicate the merits of the Claim.




    Claim dismissed.


              NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION


              ATTEST: S. H. Schulty

              Executive Secretary


Dated at Chicago, Illinois, this 23rd day of July 1965.