The organization in its initial on-property claim presentation and again when listing the claim with the Board referred to the claim date as September 18, 1988, when in reality the claim date was August 18, 1988. The Carrier throughout the handling of the dispute voiced no exception to the improper date.
When the Carrier indicated in its on-property denial of the claim that the list of cars made by the Yardmaster was copied "from the printouts furnished by the Clerical department of cars when they move to the South Yard," the organization offered not one word of challenge or refutation to this assertion until it did so in its Submission to the Board.
During the on-property handling of this claim, the Carrier at no time took any exception to the amount of the claim or to the fact that there was no individually named Claimant. Not until the dispute was presented to the Board did Carrier take exception to both the alleged excessive nature of the claim as well as to the "unnamed claimant" issue.
All of these items indicate a lack of attention by all parties to the basics of claim handling and to the mandate "to exert every reasonable effort . . . to settle all disputes . . ." as set forth in Section 2, First, of the Railway Labor Act.
From the record as it exists before the Board, it appears that a Yardmaster at Birmingham, Alabama, made a list of 28 cars which were sitting on Track X11 in the South Yard. This list of cars never left the Yardmaster's office, but rather, "was locked up in his office on his clipboard." The Organization contended that the Yardmaster "checked" the cars "for the purpose of switching track (sic)." There is no evidence or argument to define what is meant by "checked," but from what is argued in the case it can be presumed that the Organization is contending that the Yardmaster walked the track and listed the cars as they sat on Track 1111. Carrier acknowledged that the Yardmaster made a list of the cars, but argued that the list as written by the Yardmaster was made by copying the car numbers from a printout of the cars on Track X11 which had previously been prepared and furnished by clerical employees. The Carrier continues by insisting that the list was used by the Yardmaster solely for his own information and use, was not distributed to anyone else and served no record purpose. This is the sum total of "evidence" which properly exists in the case file. Form 1 Award No. 30414
It is too well established to require individual Award citations that the petitioning party in a dispute has the burden of proving every essential element of the claim. When the Carrier in this case denied that the Yardmaster did anything more than make a list of cars for his own use from a previously prepared listing which had been compiled by the Clerks whose job it was to prepare such lists, the organization was then required to come forward with probative evidence to support its claim. Mere assertions, without more, are not acceptable as proof. The organization's reliance on the hand-written statement of the Yardmaster cited and relied on by the Organization for the first time in its Submission to the Board, is not only untimely, but also is not convincing, probative evidence that refutes Carrier's contentions. We are reminded in this case of the opinion expressed in Third Division Award 20290, to wit:
The Board cannot, and will not in this case, make a decision on the basis of presumption, conjecture or speculation. If the Organization's position is as strong as it argues, then it should have been an easy matter for it to have backed its position with something more than assertions and presumption.
In arriving at our decision in this case, we have given no consideration to the arguments from either party which were advanced for the first time before the Board. All such first-time arguments from either party are summarily dismissed.
From the record which properly exists, the Board is not able to conclude whether a violation of the Scope Rule occurred in this instance. We are, therefore, compelled to deny this claim for failure of proof.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant (s) not be made.