PARTIES Brotherhood of Maintenance of Way Employes
 _TO
 DISPUTE: and
 Consolidated Rail Corporation
 STATEMENT (a) The Carrier violated the Rules Agreement ef
 OF
 CLAIM: fective April 15, 1944, as modified September 1,
 1949, January 22, 1974 and March 4, 1976, particu
 larly Rules 1- Scope, 2- Seniority, 2-d-3 - Sen
 iority District, 2-e-1, and others, when four (4)
 former Penn Central and three (3) former CRR of
 NJ unprotected trackmen were used on the former
 Lehigh Valley Railroad between Aldene and Newark,
 N. J. laying ribbon rail between 7:00 a.m. and
 5:30 p.m. each day April 4, 5, 6, 7 and 8, 1977.
 (b) As the result of such violation, Claimants
 R. Casey, Trackman; R. Eorio, Welder Helper, and
 Trackman J. Crane, J. Loughlin, J. J. Torman, G.
 Klein and L. Rivera be compensated in the applic
 able rate, for each day the violation occurred.

FINDINGS: This claim rests on the contention that Carrier
 violated the Agreement of April 15, 1944, as
 amended, by using former Penn Central and Central
 Railroad of New Jersey employes to lay ribbon rail
 along a portion of the track between Aldene and
 Newark, New Jersey. In Petitioner's view, the
 claimants were entitled to perform the work; they
 were on furlough at the time.
 The burden of proof rests with Petitioner to es-
 tablish all essential elements of its claim. While the claim
 was still under discussion.on the property, J. R. Walsh, Carrier's
 Senior Director of Labor Relations, raised the objection in writ
 ing that "no former Penn Central or Central Railroad of New
 Jersey M. W. employees performed work" in the territory in ques
 tion on the claim dates. This objection raised an issue as to
 a critical point and, while it was not voiced at an earlier stage
 in the grievance procedure, it was not untimely since Petitioner
 still had a fair opportunity to explain away the point and present
 persuasive evidence.
 However, no evidence has been introduced to support
 the allegations that the work in controversy was actually per
 formed at the locations in question by ineligible employes. The
 fact that Mr. Walsh erroneously stated that Carrier's objection
 had previously been made at the initial grievance step does not
 "a :~- D 3 - /~tw 0 . -)-

 constitute prejudicial error. Contrary to Petitioner's contention, we do not find it to be of such magnitude and so prejudicial as to require this Board to ignore Carrier's defense that there is no evidence that Pennsylvania and Central of New Jersey men performed the work. The error does not relieve Petitioner from establishing by proof, not assertion, the essential elements of the claim.

 In this posture of the record, the claim must be

 denied.

 AWARD:

        0

ZQT~

Carrier Member

 Claim denied.

 Adopted at Philadelphia, Pa.,

16, cue.


Ha~1'd M. Westoi, (Chairman

 6-.pr- 17~ 1979.

 Employe Memb~