Third Division AWARD 9783 (Referee Fleming)

"Award 7350 (Coffey) 'The Statement of Claim amounts to no more than the allegation that the contract has been or is being violated. It is not evidence. The charge, as laid, must be supported by fact. On the theory that the one affirmatively charging a violation is the moving party, and, therefore, should be in possession of the essential facts to support the charge before making it, this Division of the Board is committed to the so-called "burden of proof" doctrine: While any facts that may assist in arriving at a proper conclusion may be considered, the Organization has not made a showing here that the Yardmasters performed four hours' or more work per day. The claim should be denied."

Third Division AWARD 9788 (Referee Fleming)

" * * * Furthermore, the claim must fail for lack of proof. Mere assertions and conclusions are not sufficient to substantiate a claim."

Third Division AWARD 8838 (Referee Donald F. McMahon)

"* * * It has consistently been held by this Division that the burden of proof is upon the claimant and the Organization to show beyond a reasonable doubt that the Carrier has violated the agreement."

Third Division AWARD 8768 (Referee Donald F. McMahon)

"The Board is of the opinion that from a review of the record before us, the facts submitted are not sufficient to support a sustaining award."

Third Division AWARD 8430 (Referee Carroll R. Daugherty)

"From a study of the whole record the Board is forced to conclude that the Employes have failed to support their contentiom That is, the Carrier's decision not to assign Claimant to the new position is not found to have had such an arbitrary, capricious or unreasonable basis as to have constituted a clear abuse of managerial discretion and as to justify this Board now to substitute its own judgment for that of the Carrier. * * *" (Emphasis ours.)

Also see other awards, including Third Division Awards Nos. 8172, 7964, 7908, 7861, 7584, 7226, 7200, 7199, 6964, 6885, 6844, 6824, 6748, 6402, 6379, 6378, 6225, 5941, 2676, and others. These awards clearly state that the burden is on the claimant party to prove an alleged violation of the agreement. To date the Employes have produced no evidence of any violation.

In view of all the facts and circumstances shown by the Carrier in this Ex Parts Submission, Carrier respectfully requests the Board to deny the claim in its entirety.

OPINION OF BOARD: The theory of the present claim is that Claimant should have been assigned, by reason of her seniority, to fill temporary vacancies caused by the absence of the Secretary to the Superintendent.

It is undisputed that the vacancy in question was filled by a newly hired recent high school graduate, although Claimant had been in the Company's employ since October 20, 1944.

The defect in Petitioner's case is that Rule 1 (d) provides specifically that Management has the right of appointment in filling the position of Secretary to the Superintendent. Manifestly, only a single position of that category is involved, and there is no valid basis for the contention that Carrier is establishing a second position of Secretary to Superintendent when it fills a vacancy in that one position.

The exception prescribed by Rule 1 (d) is not unreasonable. It recognizes that executives, charged with sweeping and heavy responsibilities, must have the latitude of selecting secretaries of their own choice.

The claim lacks merit, and will be denied.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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