NATIONAL RAILROAD ADJUSTMENT BOARD

Award Number 25065

THIRD DIVISION Docket Number MS-24889

I. M. Lieberman, Referee

(United Steelworkers of America

PARTIES TO DISPUTE:

(Lake Terminal Railroad Company

STATEMENT OF CLAIM: The dispute involves the seniority rights of employee

Jesus Nieves.

OPINION OF BOARD: The thrust of the Claim herein is that Carrier violated the
Agreement, Rule 30 (a), in not posting a position of either Mechanic's Helper or Small Air Tool Operator and mistakenly assigning a junior employe to Claimant to that position. Petitioner alleges that the position in question was not a temporary assignment but rather a new position requiring posting. Carrier denies that the position in question was anything but a Laborer's position with temporary higher graded work. Both parties concede that Laborer's positions do not require posting.

It is apparent that if the disputed work was that of a Laborer there was no violation of the Agreement and Carrier was free to assign any employe in that classification to the work in question. There obviously exists a dispute with respect to the facts since the Organization insists that the work was in a higher classification than that of Laborer and the Carrier argues contrarily. No material in the record permits this Board to resolve this factual issue and in the absence of facts which can be related to the contractual provisions the Board is unable to rule. For the reason indicated the Board has no choice but to dismiss the Claim.

FINDINGS: The Third Division of the Adjustment 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;

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

That the Agreement was not violated. .,- ""

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Award Number 25065 Page 2

Docket Number MS-24889

A W A R D

Claim dismissed.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division

ATTEST:

Nancy J er - Executive Secretary

Dated at Chicago, Illinois, this 4th day of October 1984.

NOV 8 1984

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