NORFOLK AND WESTERN RAILWAY COMPANY
(Lake Region)
The time limit for handling these claims was extended by each party to the other by mutual understanding.
OPINION OF BOARD: Maintenance of Way employes telephoned progress or tamping reports to the Division Engineer on all of the dates in the claims except on November 14, 15 and 21, 1967. The claim of C. R. Young for alleged blocking work performed on the latter dates has been withdrawn by the Petitioner.
In Award No. 12118, involving a similar dispute on another district in this Carrier's property, this Board held that the Petitioner failed to show by a preponderance of evidence that progress reports were reserved to Telegraphers by history, tradition, custom and practice. The claim was, accordingly, denied. Petitioner now argues that in the instant case the "Employes have met their burden of proof and have established a valid basis for the claim by presenting details of both past practices and Carrier's reaction to these claims." Thus, the burden of proof has shifted to the Carrier which was not met.
After a careful examination of the relevant evidence in the record, we are obliged to conclude that the Petitioner has not met the burden of proof. There is no convincing evidence that such telephone communications are reserved exclusively to Telegraphers by history, custom, practice and tradition on this property.
Petitioner merely says that "the clearest evidence as to what the practice on this property has been with regard to handling such types of messages, may be found in the Carrier's failure to come forth with statements from these employes as it did with its officers, and signal maintainers (3), and two chief clerks unrelated to the issues, as contained in the twelve statements relied upon. We further submit such statements are absent for the reason they would lend damage to the Carrier's defense regarding such practice." A preponderance of evidence of an alleged fact is not proved by an omission of evidence from the opposing party. The Petitioner alone must prove by a preponderance of relevant evidence that by history, custom, tradition and practice communications of progress or tamping reports are reserved exclusively to Telegraphers. The mere omission of statements from the Maintenance of Way employes involved in this dispute is not affirmative evidence of proof for the Petitioner. Likewise, putting Carrier on notice of telephone conversations allegedly in violation of contract rules does not establish a prima facie case for the Petitioner. The same is true with settlements of disputes on the property. They are not precedents unless they firmly and unequivocally establish a practice on the property that has consistently continued for a reasonable period of time. Otherwise, they may be compromises which do not reflect the merits of the case. The settlements referred to by the Petitioner do not establish such an unequivocal past practice.
Further, the reports are not messages of record. "They do not affect the operation of trains or do they affect the safety of persons on and off property." (Award No. 18069.) They are not communications the transmission of which are exclusively reserved to telegraphers.
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