Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 35422
Docket No. MW-32875
01-3-96-3-215
The Third Division consisted of the regular members and in addition Referee Robert
M. O'Brien when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Consolidated Rail Corporation
STATEMENT OF CLAIM
:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to assign Mr. R.
T. Hollen to perform overtime service on November 13, 1994 and
instead assigned Supervisor B. Little to perform foreman's duties of
directing a gang in the replacement of insulated joints, (System Docket
MW-3710).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant R. T. Hollen shall be allowed ten (10) hours' pay at the
foreman's time and one-half rate and he shall receive proper credits
and benefits therefor."
FINDINGS
:
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.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 35433
Page 2 Docket No. MW-33019
01-3-96-3-418
Although several facets of the instant claim are in controversy, an essential
element of the instant dispute is whether the B&B Plumber, Mr. Pugh, actually operated
the backhoe as alleged on the dates in question. The earliest stages of the handling of
this claim on the property give the distinct impression that Mr. Pugh did. However, the
response of the highest designated officer very clearly countered that impression.
According to the response, an examination of records revealed that Mr. Pugh had not
performed the disputed backhoe work. Thereafter, neither party provided any actual
evidence to resolve the question one way or the other.
This leads to the question of which party had the burden of proof regarding the
missing fact. Generally speaking, when the existence or non-existence of an essential fact
is in issue, as it is here, the burden of proof must be shouldered by the party asserting
the affirmative aspect of the fact (e.g., that Mr. Pugh did perform the work) rather than
the party asserting the negative aspect (e.g., that Mr. Pugh
did not perform the work).
The instant record provides no proper basis for departing from that evidentiary
doctrine.
Given the lack of evidence to determine the essential element, we must conclude
that the Organization has failed to satisfy its burden of proof.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of Third Division
Dated at Chicago, Illinois, this 26th day of April, 2001.