"I. The Carrier violated the Agreement when failed to call and assign R. Paitsel

for straight time and overtime service in connection with work performed at

a derailment site between Mile Posts 155.2 and 158.2 on the Clifton Forge

Seniority District on December 31, 2002, January 1, 2, and 3, 2003 and

instead assigned junior employe W. Carter [System File 631800803/12(03

0391) CSX].

2. As a consequence of the violation referred to in Part (1) above, Claimant R.

Paitsel shall now be compensated for forty (40) hours' pay at his respective

straight time rate of pay and forth (40) hours at his time and one-half rate of

pay_

The Board, upon the whole record and on the evidence, finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended: that this Board is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and that the parties were given due notice of the hearing.

After careful review of the parties' submissions, it is clear that the evidentiary record consists of nothing more than assertions that were not supported by any actual evidence after they were effectively refined by the Carrier. The record shows that a significant conflict of fact existed over whether a derailment occurred on December 31, 2002 as alleged in the initial claim. In addition, the Organization's May 26, 2003 appeal of the Carrier's denial, which refuted the existence of a derailment on December 31, 2002 as the claim alleged, is internally contradictory. On page one of the appeal letter, the Organization again asserted, "On December 31, 2002, a derailment had occurred ... [at the previously specified location]" On page two of the appeal letter, however, the Organization wrote, "The derailment had occurred prior to December 31, 2002." As previously noted, at no time did the Organization provide any evidence that a derailment occurred at the location at any time.

The record also establishes other disputes of material fact that were not resolved by the production of evidence. For example, a material issue of fact continued to exist over whether claimant was furloughed and available or working on a Florence Service Lane assignment out of the region.

The fact that the Organization failed to provide any probative evidence whatsoever to properly establish that a derailment occurred at any time or to resolve other factual conflicts leads, inescapably, to the finding that the record developed on the property does not establish key facts necessary to support the claim. Accordingly, we must find that the Organization has failed to satisfy its burden of proof. As a result, the claim must be denied.

The Claim is denied.

/Gerald E. Wallin, Chairman and Neutral Member