(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Louisville and Nashville Railroad Company

(1) Carrier violated the Agreement when beginning March 7, 1972, it failed and refused to assign Pamela Doleman to the position of File Clerk as described and advertised in Bulletin Nos. 24 and 25, District No. 13, dated March 3, 1972.

 (2) Carrier shall, because of the violation cited in (1) above, compensate Pamela Doleman, at the rate of $30.32, for each assigned work day, Monday through Friday, inclusive, beginning March 7, 1972, and continuing until the violation ceased as of close of business April 14, 1972.

 (3) That seniority of Pamela Doleman, in District No. 13, shall date from March 7, 1972, the date her Rule 7 application was due to have been honored.

 OPINION OF BOARD: In February, 1972, Claimant filed a Rule 7 Appli
 cation for a position in District 13. Rule 7
 states, in appropriate part:

On March 3, 1972, Carrier advertised, for bid, two positions in District 13. No bids were submitted by employees holding seniority in that District.
























Carrier denied the claim because; (1) an oral understanding precluded the necessity of filling the vacancies; (2) Claimant was not the senior employee with a Rule 7 Application on file and; (3) the Carrier is not required to fill vacancies under the Agreement.


Initially, we will consider the oral understanding. A review of the record shows that unquestionably there was an oral agreement dealing with necessity of filling certain vacancies due to a pending consolidation of one group into another bureau. However, the Board is unable to determi
On two occasions, during the handling of the matter on the property, the Organization stated that it had agreed only to hold open certain positions which were vacant at the time of the oral understanding, and the March 3, 197 time. In further correspondence on the property, Carrier never took issue with that description of the oral agreement.

 Certainly, proper representatives of the Carrier and the Organization may alter the terms of the collective bargaining agreement under appropriate circumstan oral understanding as an affirmative defense to its actions, it is clear that said party has the burden of proving its reliance, and must establish the terms of the relied upon portion of the agreement by clear and convincing evidence. See Awards 17060 (Dugan), 12793 (Engelstein), 19337 (Edgett), 14982 (Ritter), 14735 (Dugan) and 12251 (Seff).

 In this dispute, Carrier has the burden of proof. Under the record before us, we fail to find clear and convincing proof that the oral agreement relieved Carrier of any obligation it may have had to fill the vacancies in question. Accordingly, we are unable to agree that Carrier properly relied upon an oral understanding as a defense to this claim.

 Secondly, we consider the Carrier's assertion that the Claimant was not the senior employee with record appears to confirm that employees senior to Claimant would have been called to duty prior to the Claimant, if Carrier had utilized the procedures of Rule 6(k). While the record fails to indicate why senior employees remained silent, it does confirm that no claims were submitted by, or on behalf of, those senior individuals. Seniority is, of course, a right eizich accrues to each individual employee. This Board has noted on a number of occasions that the sole fact that another employee may have had a better right to a claim is of no concern to the Carrier, and does not relieve the Carrier of a violation of the Agreement when that right was not exercised. See, for example, Awards 19067 (Dugan), 18557 (Ritter) and 17801 (Kabaker). Claimant's requested relief may not be denied, under the facts and circumstances of this record, because of her seniority ranking.


Finally, the Carrier asserts that it was not required to fill the vacancies in any event; relying upon Award 12358 (Dorsey) and Awards dealing with a Carrier's ri it to abolish positions. See Awards 15379 (Engelstein), 16468 (McGovern), and 16876 (Cartwright). As we view the record developed on the property, we do not find that carrier advanced this contention, but rather was content to rely upon the alledged oral understanding. Carri it has been necessary to fill a vacancy...". However, Carrier went on to state that if there had been no bids from qualified assigned employees, then the position woul the provisions of Rule 6(k).

 Regardless of the contentions advanced to this Board regarding the requirement to fill a vacancy Carrier recognized the existence of a vacancy and attempted to fill same. On March 3, 1972, in two separate documents, the Carrier advised all concerned employees:

        "The following position is hereby advertised for bids in accordance with clerical, station and storehouse employees agreement, as required under Rule 6..."


Thus, instead of abolishing the positions in question, the Carrier attempted to fill same. Having failed to do so by bulletin, it was appropriate to then utili
Claimant seeks relief from March 7, 1972, with pay running through the close of business on April 14, 1972. In mid-March, the Organization reminded Carrier of Claimant's Rule 7 Application. It was not until March 29, 1972, that a claim was made on behalf of the Claimant for one of the two file clerks positions advertised on March 3, 1972.

 We have noted above the fact that Claimant was not the senior individual with a pending Rule 7 Application, and concluded that said factor does not defeat her claim. At the same time, because of her relative seniority among those with Rule 7 Applications on file, we are reluctant to sustain the claim for any period of time prior to the Carrier having been specifically placed on notice of her claim. Accordingly, we will sustain the claim beginning March 29, 1972, rather than March 7, 1972.
              Award :lumber 20190 page 5

              Docket :umber CL-20350


FJITGS
 7_1T'D The Third Division of the Adjustment 3oard, upon the
        whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes the Railway Labor Act, as approved June ^1, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
        That the Agreement was violated.


                  A W A ° D


Claim is sustained to the extent set forth in the Opinion of the Board.

                      NATIONAL RAILROAD Ar).TI'ST'~fF'~:T RnaRn

                      By Order of Third Division


ATTEST:
 Executive Secretary

 Dated at Chicago, Illinois, this 15th day of :March 1974.