(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when, on April 27, 28 and 29, 1983, the Carrier assigned and used junior Group II Machine Operator J. Caple to fill a temporary Group II Machine Operator's position instead of recalling and using furloughed Group II Machine Operator J. Lind.

 (2) As a consequence of the aforesaid violation, furloughed Group II Machine Operator J. Lind shall be allowed twenty-four (24) hours of pay at the Group II Machine Operator's straight time rate."


                  (a) Temporary vacancies of less than

                  thirty (30) calendar days need not be

                  bulletined, but may be filled by the

                  senior qualified employee immediately

                  available. An employee who does not

                  exercise his seniority to such a tem

                  porary vacancy of thirty (30) calendar

                  days or less will not forfeit any se

                  niority."


The thrust of the Claim is that Carrier used a junior Group II Machine Operator on a Machine Ope instead of Claimant herein who was more senior and was furloughed at the time, and available. Carrier denies that the junior employee operated a Group Ii Machine on any of the days in question. Further Carrier avers that on one day when the junior employee was used at a derailment site (April 27th) if he did operate a machine, it was on an emergency basis. Carrier also notes that on one of the Claim dates, April 28th, the junior employee did not work at a11. Carrier presented the time records of the junior employee to substantiate its position.

 Organization is correct in that the question of emergency work was not raised during the handling of this matter on the property and hence is improperly raised subsequently. However, Organization has failed to support its Claim with any evidence to support its factual position which is the fundamental aspect of the dispute. Mere assertions do not take the place of facts and evidence. In this dispute Organization has not borne its burden of proof and the Claim must he denied.
                    Award Number 26251 Page 2

                    Docket Number MW-25978


        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


        Claim denied.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest
        Nancy J/I~f._r - Executive Secretary


Dated at Chicago, Illinois this 20th day of March 1987.