(Brotherhood of Railway, Airline and Steamship Clerks,
 ( Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE:
 (The Belt Railway Company of Chicago

1. The Carrier violated the effective Clerks' Agreement when on April 19, 1974 and on subsequent dates listed in Section 2 hereof, it employed the services of A. Sa ment relationship or antecedent seniority, hence a non-bona fide employe, ·_
 to fill short vacancies and/or perform extra work.

 2. The Carrier shall now be required to compensate the following named regular employes, with established seniority, for eight (8) hours' pay at the time and one-half rate of the position specified on which A. Savaiano was used for each_of the dates specified below:

 Claimant _Date Position
 Filled
 T. Anhalt _ April 19, 1974 #230
 H. Webber April 24, 1974 #383
 S. Wojcik April 25, 1974 #383
 S. Wojcik April 26, 1974 #383
 B. Blacklaw May 2, 1974 # 34
 H. Webber May 3, 1974 # 34
 H. Webber May 4, 1974 East Yard Extra
 S. Wojcik May 6, 1974 # 34
 S. Wojcik May 7, 1974 # 34
 B. Blacklaw May 8, 1974 # 34
 B. Blacklaw May 9, 1974 # 34
 H. Webber May 10, 1974 # 34
 K. Montello May 13, 1974 # 34 .
 H. Bentley May 14, 1974 # 33
 B. Blacklaw May 15, 1974 # 71
 E. Downs May 16, 1974 #332
 H. Webber May 17, 1974 # 33
 T. Anhalt May 20, 1974 #228
 V. West May 23, 1974 #228


                Award Number 21401 Page 2

                Docket Number CL-21121


OPINION OF BOARD: On Friday, April 19, 1974 a vacancy existed on a regu
 lar assignment, position No. 230, with assigned hours
 3:00 p.m. to 11:00 p.m. There were no furloughed employes available and
 Carrier, as it states, made "every possible attempt to fill position No.
 230 at the penalty rate." Carrier, in support of this statement, said
 that it contacted J. Marks, Chief Clerk to the Car Accountant.

 The parties are in essential agreement that an employe with no seniority could be used on the vacancy only if no employes holding seniority were available to fill it. Claimant was not available, says Carrier, because he was holding an 8:00 a.m. to 4:30 p.m. turn on that date and would not have been able to fill the first hour and one-half of the vacancy. J. Marks, who Carrier says it contacted, was holding a turn on the same date with the same hours as Claimant. The record does not show why Carrier considered Marks available and the Claimant unavailable. It may be, as the Board has been told, that Marks' position could be blanked for the hour and one-half while Claimant's position could not be. However, there is nothing in the record to support that supposition and the Board must act on evidence, not speculation.

 The record does show that Mr. Marks, who was contacted by Carrier about the vacancy, is many places junior to the Claimant Anhalt. By contacting Mr. Marks for the vac in its handling of the claim,Carrier has permitted a reasonable inference that it recognized a requirement to fill the vacancy with an employe holding seniority and an obligation to call an "out of line" employe for it.

 The record, as it stands, shows Carrier's recognition of that obligation and it also shows Claimant Anhalt's greater seniority. Under the circumstances, it was incumbent upon Carrier to enter into the record its reason for not recognizing that seniority. It did not do so and under the circumstances the Board is disposed to sustain the claim.

 In our determination in this case, we have not considered the arguments and counter arguments co 30, 1966 which were raised for the first time before this Board.

        FINDINGS:The Third-Division of the Adjustftient Board,- 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 within the meaning of the Railway Labor Act, as approved June 21, 1934;
                Award Number 21401 Page 3

                Docket Number CL-21121


That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: r
 Executive Secretary

 Dated at Chicago, Illinois, this 28th day of January 1977.