"The Employes have failed to prove that the Carrier has violated any rule of the Agreement and have failed by proof to show that a substantial amount of work is being performed by employes outside the scope of the yardmasters' agreement. * * *"

"* * * 'The evidence in this docket is held to be insufficient to enable this Division to determine the merits of the claim asserted,"'

"The burden of proof is on the claimant to prove his allegations."

"The burden of proof of violation of the agreement is on the Organization. Numerous Awards of the Fourth Division as well as other Divisions of the National Railroad Adjustment Board can be cited in support of this well established principle. * " *"

"* * * If the facts clearly and conclusively support the Organization's contention, then we must allow the claim; if they lack specificity and are inconclusive, we must deny it. * * * After a review of the entire record, we find that the evidence submitted by the Organization in behalf of the claim is not of sufficient substance to sustain the burden of proof required to justify an affirmative award."

"* * * The Petitioner has submitted no factual data in support of its claim that employes other than yardmasters are performing yardmasters' duties in violation of the controlling Agreement. This Division has repeatedly held that the burden is on the claimant to show by competent and substantial evidence that duties belonging to yardmasters are being performed by employes to sustain this burden and the claim will be denied."

It is the Carrier's position that the employes have failed to meet the burden of proof feature in the instant case in which the instant claim must be dismissed in its entirety,

The Carrier submits that it is readily apparent that by the claim which they have presented the employes are attempting to secure through the medium of a Board Award in the instant case something which they do not have under the rules and in this regard we would point out that it has been conclusively held that your Board is not empowered to write new rules or to write new provisions into existing rules.

It is the Carrier's position that there is absolutely no basis for the instant claim as it is in no way supported by past practice, schedule rules or agreements and we respectfully request, therefore, that the claim be denied.

OPINION OF BOARD: Claimant's position in the instant dispute is, as follows: "Although calling train and engine crews is a duty assigned to the Boardman position by bulletin, it is a practice of long standing for Operators to call train and engine crews during the hours when no clerical position and

employe is on duty." (Emphasis ours.) In addition, it is Claimant's contention that crews called by Operators at Three Forks, Montana are called from a list of crews prepared and furnished by the Boardman, the Claimant herein, - the operation of the crew boards remained the sole duty and responsibility of the Boardman; that on March 20 and March 31, 1961, when Claimant was not on duty, the need for additional crews arose which had not been anticipated and which therefore were not included in the lists of crews to be called as furnished to the Operators by the Boardman; that in such instance the Operators without the Boardman setting up the board called the crew; that the Claimant should have been contacted and called to set up crews as under the scope of the agreement this was the exclusive work of the Claimant as evidenced by the bulletin creating the assignment.

It is the position of the Carrier that all the work required in the conduct of the station at Three Forks had, for many years, been performed in whole or in part by fully covered employes within the scope of the Telegraphers' Agreement that the work involved is neither reserved to employes within the scope of the Clerk's Agreement nor has it ever been exclusively performed by employes within the scope of the Clerks' Agreement. It is Carrier's position that there is absolutely no basis for the instant Claim.

It has been quite conclusively established by many Awards of this Board that the burden of proof of any claim rests with the party making the contention and claim. For Claimant to prevail in the instant claim it must have been established by a fair preponderance of the evidence that historically and traditionally by custom and practice on this property that an employe within the purview of the Clerks' Agreement had the exclusive right to the performance of setting up crew boards as contended for here.

See the following awards involving the same parties - Award 9757 - (LaDriere); Awards 14064, 14065 (Rohman).

Cliamant has relied on mere assertions, not proof, and has failed to meet the burden of proof required.

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 rover the dispute involved herein; and

That the Agreement has not been violated.

AWARD