TRANSPORTATION-COMMUNICATION EMPLOYEES UNION CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Employees Union on the Chicago, Rock Island and Pacific Railroad, that:
The Agreement between the parties, dated August 1, 1947, as amended and supplemented, is on file with your Board and by this reference is made a part hereof.
Claim was timely presented, progressed, including conference with the highest officer designated by the Carrier to receive appeals, and has been declined. The Employer, therefore, appeal to your Honorable Board for adjudication of this dispute.
The claim arose when the Carrier used a regularly assigned telegrapher in the Relay Office at El Reno, Oklahoma on his rest day to fill a vacancy in that office. Claimant, who is also regularly assigned telegrapher in the same office and who was also on rest day and available on date of occurrence, asked the Carrier to pay him the damages suffered because he was denied the right to fill the vacancy in preference to the junior employe. Carrier responded with the plea that Claimant had made an oral statement that he never wanted to be used on his rest days, which Cla'mant vigorously denies having made either in writing or orally as contended by the Carrier. The rules provide that office seniority will prevail and be effective when vacancies occur.
4. This dispute was handled on the property in accordance with the applicable Time Limit On Claims Rule of the Agreement between the parties, end the Railway Labor Act, as amended.
5. To avoid burdening the record, Carrier has not included copies of the correspondence presented on the property concerning this claim as it is anticipated the Employes w'11 produce such correspondence as a part of their submission. However, Carrier will refer to various portions of this correspondence, as necessary, and will reproduce pertinent port'ons of same where appropoiate. Carrier will also tale ex°eptiom in it, rebuttal statement to any errors or omissions in the Employes' reproduction of such correspondence.
OPINION OF BOARD: The ela'm presented aver., that the Claimant, the senior available telegrapher, should have been called, on his rest day, to fill a temporary vacancy in a position, to which his seniority would have entitled him to be called to protect such vacancy.
Carrier adrn'.ts that Claimant's seniority would have permitted him to 5ll the temporary- vacancy. but asserts that Claimant had orally informed
Company, prior to the present incident, that he did not wish to be called on his rest days.
The Employes properly contend that since the Cla'mant's right to be called, based upon his seniority is not disputed, a prima facie case has been established by the Claimant and that the burden of proving a defense to such claim rests upon the Carrier.
The Board finds that Carrier did not call the Claimant to offer him the opportunity to fill such temporary vacancy.
The record reveals that Carrier's Manager-Wire Chef asserted in a letter, on the property, that Claimant orally informed him that Claimant did not work on his rest days. Claimant denied making such statement as alleged by Carrier. We find that Carrier failed to rebut the Claimant's denial by proof and failed to establish its assertion by tangible proof. This Board has ruled on numerous occasions that mere assertion of a fact, which is denied, can not be accepted as proof thereof.
The Board must conclude that the Carrier has not sustained its burden of proof to justify its failure to call the Claimant to fill the temporary vacancy to which he was entitled by virtue of his seniority.
FINDINGS: The Third Division of the Adjustment Board, 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