(Brotherhood of Railway, Airline and Steamship Clerks,
 Freight Handlers, Express and Station Employes
 PARTIES TO DISPVrE:
 (Norfolk and Western Railway Company

1. Carrier violated the agreement between the parties, Rules 38 and 66 in particular, when Yardmasters were used to handle train orders and OS trains, and failed to deny the claims dated February 3, March 1, April 5, 30 and May 10, 1978, filed with Mr. C. W. Moore, ATM.

 2. The claims of E. Denk, for January 3, 4, 5, 6, 7, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 31, February 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, March 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 25, 28, 29, 30, 31, April 1, 2, 4, 5, 6, 7, 8, 11, 12, 13, l4, 15, 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29, 1978 and H. D. McCann for March 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30 and 31, 1978 will now be allowed as presented.

 OPINION OF BOARD: Like so many cases which are appealed to this Board, the
 instant dispute is but one such case in which the precipitating
 incident(s) have become somewhat obscured because of various procedural develop
 ments which have arisen subsequent to the initial filing of the original clalm(s).

 The precipitating incident involved in the instant dispute was the filing of a number of time claims by Employes Denk and McCann alleging that ".., yardmaster at Campbell Road was doing operator's work..." and further alleging that said action was in violation of Rule 66 of the parties' applicable Agreement. In this regard, Employe Denk filed 18 claims dated February 3, 1978, 20 claims dated March 1, 1978, 22 claims dated April 5, 1978, and 22 more claims dated may 10, 1978; Employe McCann filed 30 claims dated April 30, 1978. All of these claims were filed with Mr. C. W. Moore, Assistant Terminal Trainmaster.

 In letter dated July 5, 1978, and addressed to J. P. Watters, Superintendent, the Vice General Chairman, J. T. Walker, appealed said claims contending that, "To date, Mr. Moore has failed to deny any of these claims..." In response to Mr. Walker's contentions, Mr. Watters, in letter dated August 3, 1978, replied that:



Vice General Chairman Walker in letter dated August 20, 1978, and addressed to J. R. Neikirk, Vice President-Administration, disputed Mr. Watters' contention that the claims had been denied. In said correspondence, Mr. Walker apprised Mr. Neikirk that the claims were now being appealed under Rule 38 of the parties' Agreement and further that:

In his reply dated October 11, 1978, Mr. Neikirk, inter alia, informed Mr. Walker that "... all of such claims were properly and timely within 60days) disallowed by Trainmaster L. E. Reed in individual letters addressed to the claimants"; and, in addition:

















                    Docket Number CL-23103


            Vice General chairman appealed the claims to Superintendent Watters, however, the 60-day time limit for appeal had expired and the Vice General Chairman did not notify Trainmaster Reed, in writing, of the rejection of his decisions of March 2, 1978.


            4. By letters (21) to Assistant Trainmaster Moore dated April 5, 1978, claimant E. Denk submitted claims for various dates (21) in March, 1978. These claims were disallowed by the Trainmaster in his twenty-one (21) letters dated may 11, 1978. By letter dated July 5, 1978, the Vice General Chairmen appealed the claims to Superintendent Watters, however, the Vice General Chairman did not notify Trainmaster Reed, in writing, of the rejection of his decisions of May 11, 1978.


            Furthermore, and without waiving any of the Carrier's position regarding the employee's and/or his representative's failure to comply with Rule 38, these claims of E. Denk for March 1978 are for duplicate dates submitted by H. D. McCann.


            5. By letters (22) to Assistant Trainmaster Moore dated May 10, 1978, claimant E. Denk submitted claims for various dates (22) in April 1978. These claims were disallowed by the Trainmaster in his twenty-two (22) letters dated May il, 1978. By letter dated June 8, 1978, the local chairman appealed the claims to Superintendent Watters and by letter dated July 5, 1978, the Vice General Chairman also appealed the claims to Superintendent Watters, however, neither the local chairman nor the Vice General Chairman aotifled Trainmaster Reed, in writing, of the rejection of his decisions of May 11, 1978."


On January 30, 1979, a conference was held between the parties in an effort to resolve the dispute, but this conference proved to be unsuccessful.

 In a letter dated April 2, 1979, from Mr. Neikirk to Mr. Walker, Carrier's position, which apparently was articulated at the January conference, was summarized as follows: (1) "...each of the claims in question was disallowed by the Carrier within the 60-day time limits specified by Rule 38"; (2) Organizations alleged contention that "...Assistant Trainmaster C. Moore is the only Carrier representative who can handle the claims" is incorrect, and "...in fact, Trainmaster L. E. Reed, is the officer at Cleveland Terminal who is authorized to receive and handle time claims from employees..."; (3) subject claims "are barred under the provisions of Rule 38 by reason of the fact that neither the claimant(s) nor the local chairman notified Trainmaster Reed, within 60-days, of the rejection of his decision"; and (4) "...there has been
                    Award Number 23432 Page 4

                    Docket Number CL-23103


no probative evidence presented to support the contention that Rule 66 - TRAIN ORDERS, has been violated, therefore, such contention lacks merit" (Emphasis added by Carrier).

 In letter dated April 5, 1979, which is the last significant correspondence of record between the parties regarding this matter, Vice General Chairman Walker responded to Mr. Neikirk's letter of April 2, as follows:

        "Your contention that the claims in question were disallowed by the Carrier is not understood. As stated in my letter of August 20, 1978, the claims have never been denied and should now be allowed as presented.


        Your allegation that Mr. Reed's denial of other claims has complied with Rule 38 is not acceptable.


        If the claims dated April 30, February 3, March 1, April 5 and May 10, 1978, were denied, please advise when and by whom.


        Since no denial of these claims was ever received, it was not possible to advise anyone that their decision was being appealed."


Despite the various contentions and counter-contentions which have been proffered by the parties and which have been recounted hereinabove, there appears to be but one threshold issue which is before the Board, and that is whether Carrier denied the disputed claims within the 60-day time limit as specified in Rule 38. A negative finding on this issue precludes the necessity of the Board's consideration of any of the other related issues since such a determination would inevitably have destroyed the proverbial "house of cards" which the parties have erected as a result of their argumentation. Thus, in this regard, carrier contends that said denials were initiated by Trainmaster Reed and that they were timely. Organization, on the other hand, contends that said denials were never made at all by any Carrier representative within the contractual time limits.

 Upon a careful review of the complete record in this dispute, the Board quite frankly, is unable to determine with any degree of certainty whether Carrier denied said claims in the manner and within the time frame as Carrier alleges. Most assuredly, Carrier's contention in this regard places the burden of proof upon Carrier to demonstrate that such denials were, in fact, made (Third Division Award 10173). While the record clearly shows that Carrier did have documents in its possession which could have been used to verify this particular contention, the record also shows that after having been requested by Organization to provide such documentation/verification, it was not until after the dispute had left the property and had been appealed to this Board that Carrier, for the first time, saw fit to supply the confirming data which Organization had requested and which was so critical to Organisation in the making of such a type of determination.
                    Award Number 23432 Page 5

                    Docket Number CL-23103


Insofar as this particular withholding of information by Carrier can only be viewed by this Board as being a denial of Organisation's right to be provided with all relevant and necessary documentation regarding a particular dispute; and, moreover, insofar as it has long been held by this and numerous other Boards that new evidence which has not been presented by the parties on the property will not be considered by the Board (Third Division Awards 14994, 18122, 18247, 18545, 19832, 20918 and 21073), these particular determinations alone are fatal to Carrier's case herein, and the grievance, therefore, will be sustained.

        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 disptt a 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 violated.


                      A W A R D


        Claim sustained.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        Attest: Executive Secretary


        Dated at Chicago, Illinois, this 3rd day of November 1981.