(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Maine Central Railroad-Company/Portland Terminal Company


1. Carrier violated the Agreement between the Parties when on December 15 and 16, 1980, Clerk Wayne Bubar, was required to work his two (2) rest days, but, was only paid straight time.
2. Carrier shall compensate Wayne Bubar, Clerk, Rigby, Maine, four (4) hours punitive pay each day, December 15 and 16, 1980, because he was required to work his rest days at Carrier's request.
OPINION OF BOARD: At the time of the incident herein, Claimant was working
 a regular position, Wednesday through Sunday, with rest
 days Monday and Tuesday. A temporary vacancy occurred on the Chief Clerk's
 position since he was on vacation from December 15, 1980,through December
 19th. Claimant, at Carrier's request, worked the vacancy and was compensated
 for the time at the higher rate but straight time only. The rest days of the
 Chief Clerk's position were Saturday and Sunday. Petitioner insists that
 Claimant should have received the punitive rate for his regular Monday and
 Tuesday rest days under the provisions of Rule 7 (g) and 17 (c). Those rules
 provide:








                      Docket Number CL-24959


Carrier disagrees with Petitioner's argument and maintains that the assignment was governed by the provisions of the Memorandum of Agreement dated January 7, 1963, which provides in pertinent part:
        "4. Any regular Employe voluntarily exercising his seniority onto

        a temporary vacancy will take the conditions of that assignment

        including rate of pay (subject to Probationary Rates), rest days;

        etc. and will remain on the assignment until released therefrom by

        the actual return of the regular incumbent; the job is abolished;

        the job is assigned through Bulletin process; he is displaced therefrom,

        etc.


        If the temporary vacancy ends after the last work day of the work week of the position, the Employe must take the rest days of the temporary position before being permitted to return to his regular position or taking another temporary position."


Carrier notes that there could be no violation of the rules cited by Petitioner since Claimant had voluntarily taken the higher paying temporary assignment under the provisions of the 1963 Memorandum cited above.
The crux of this dispute is whether or not Claimant voluntarily took the higher paying position on December 15th. If he was assigned to this position by Carrier, the organization's position has merit; if not the Carrier must prevail. Carrier insists that Claimant voluntarily took the job. There is no evidence of record to show otherwise. Petitioner had the burden of proof in this case and has not met that burden with respect to this critical factual element of the dispute. For that reason, the Claim must fail.
        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.


                      A W A R D

                                                        1

        Claim denied. l ;Y~I

        NATIONAL RAILROAD ADJUSTMENT BOARD

        By Order of Third Division ;.%


ATTEST:
        Nancy ver - Executive Secretary `-


Dated at Chicago, Illinois, this 31st day of January 1985.