Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40394
Docket No. MW-40577
10-3-NRAB-00003-080398

The Third Division consisted of the regular members and in addition Referee Sherwood Malamud when award was rendered.

(Brotherhood of Maintenance of Way Employes Division - ( IBT Rail Conference PARTIES TO DISPUTE: ( (Union Pacific Railroad Company (former Southern ( Pacific Transportation Company [Western Lines])

STATEMENT OF CLAIM:





FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
Form 1 Award No. 40394
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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.




The Organization asserts that on August 8, 2006, Claimant H. Ramone presented himself at 4:45 A.M. for a 5:00 A.M. start at the designated assembly point for System Gang 8500 in Tucson, Arizona. The Carrier defends by asserting that the Claimant was late for work and, as a consequence, Foreman, T. Vega sent him home.


The record developed on the property contains no statement from the Claimant as to when he reported for work. The record contains statements from Supervisors who were not on site at the time, but who assert that the Claimant was late for work that day.


The Organization bears the burden of proof in cases such as this. The parties disagree on the central fact in this case, i.e., whether the Claimant reported on time or was late for work. There is no evidence in the record to support the Organization's assertion that the Claimant timely reported for work on August 8.


Due to a failure to prove the central fact in this case and the conflict between the parties over this central fact, both serve as a basis for the Board to deny the claim. The Board has held that as an appellate body it has no way of resolving evidentiary conflicts. See Third Division Awards 36566 and 37659. In Public Law Board No. 2960, Award 154, Referee Gil Vernon held:



Form 1 Award No. 40394
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Carrier's discretion to refuse to permit a tardy employee to work. Rather, the Carrier may send the employee home; such does not constitute discipline. Accordingly, without the ability to resolve the factual dispute over whether the Claimant timely reported for work, the Board will not disturb the Carrier's decision to place an unauthorized absence in the Clot's personnel record.









that an Award favorable to the Claimant(s) not be made.


                      By Order of Third Division


Dated at Chicago, Illinois, this 25th day of March 2010.