The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
A. Moore and R. Forgione (Claimants) hold seniority in Carrier's Track Subdepartment. Claimants were classifications when this dispute arose. The Organization filed a claim on behalf of Messrs. Moore and Forgione, alleging that Carrier had violated the Agreement when it contracted with C.W.& W Contracting to perform work which members of the Organization had "traditionally and historically" performed.
According to the General Chairman, on February 11 through 15, 1991, C.W.& W used two (2) men with a track hoe and "small 'dozer" to clean drainage ditches between Mile Post T-97.5 to T-98.3. The General Chairman asserted that the work could have been performed by Claimants, had the Carrier "used its owned equipment."
Carrier denied the claim, maintaining that the work in dispute had not been assigned "exclusively" to members of the Organization, but had been both "historically and traditionally been performed by other employees in the Maintenance of Way Departments, as well as non-company personnel and equipment." Carrier further maintained that the Organization did not provide "any evidence" that the work had been performed on the dates alleged, let alone "any evidence" that its members had customarily performed the work at issue. Form 1 Award No. 31606
As the moving party, it was incumbent upon the Organization to prove, through a preponderance of record evidence that: (1) Carrier contracted with an outside concern to perform the work of cleaning drainage ditches on the dates in dispute; and, (2) The clearing of drainage ditches is work which accrues exclusively to members of the Organization. Bare assertions are not evidence, especially when material facts supporting the claim are challenged as to factual accuracy and such challenges go unanswered.
From the outset, Carrier maintained that there were "no records" of drainage ditch work performed between Mile Post T-97.5 and T-98.3 on claim dates and that it had no knowledge of such work by any outside contractor on February I 1 through 15, 1991. If the Organization had appropriate evidence to support its assertions, that evidence was not made part of the record. Therefore, we have no alternative but to dismiss the claim for failure to make a prima facie case.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.