Claimant, with a Rank 3 seniority date of January 4, 1979, was regularly assigned to a Backhoe Operator's position on Tie Gang 5M78 headquartered at Thomaston, Alabama. On July 14, 1989, all positions on Gang 5M78, including the Claimant's, were abolished. Pursuant to Rule 21 (c) as stated above, Claimant had displacement rights over any junior employees in his seniority district. However, Claimant did not choose to exercise his seniority option until July 26, 1989, at which time he placed onto Gang 5M77.

On September 8, 1989, the General Chairman submitted a claim stating that subsequent to the abolishment of Gang 5M78, junior employee S. L. Johnson operated the backhoe from July 17-21, 1989. Further, the General Chairman stated that junior employee R. E. Bryant was called to fill a Foreman's vacation absence, also on Gang 5M78, commencing July 24 through July 28, 1989. The General Chairman asserted that the Claimant was entitled to have been called to fill both of these aforementioned positions.

On October 27, 1989, the Division Manager sent the following response:

"My investigation into the allegations made subject of your claim reveals Mr. Riley was cut off effective July 14, 1989. The backhoe was not used on the dates made subject of your allegations. Furthermore, your allegation a junior employee worked the Foreman's position is not supported. Mr. J. R. Williams worked his regular assigned job as section foreman on the dates made subject of your claim. Mr. Williams is senior to Mr. Riley and is the regular assigned occupant. The facts revealed in my investigation do not

indicate any type of violation as alleged in

your claim. I find your claim is based on mere conjecture. You have failed to show any merit

or contractual support to your allegations."

The organization maintains that Carrier violated Rules 21 and 22 when it assigned junior employee Johnson to perform the duties of Backhoe operator on July 17-21, 1989. According to the organization, the Carrier was "contractually obligated to make that assignment in accordance to seniority and the provisions of the Agreement." Further, the organization asserts that "the fact that

the assignment involved here was made on the first working day following the abolishment of the Claimant's position .... there can be no question but that the Carrier's actions are suspect." Finally, the Organization alleges that the Claimant should have been allowed to work Foreman J. R. Williams' vacation absence on July 24, 25, 26, 27 and 28, 1989, in lieu of the junior employee.

For its part, the Carrier submits that the Claimant "chose not to exercise his seniority until July 26, 1989" when he placed himself on Gang 5M77. More importantly, however, the Carrier maintains that "there is no evidence in the record that a backhoe was operated by a junior employee on the dates claimed." Although the organization supplied a "time sheet" to substantiate its claim, a review of the time sheet shows it to be "totally lacking in any information to support the claim," according to the Carrier.

Further, the Carrier asserts that the organization's second allegation, which centers on the fact that the Claimant was not called for extra work on a vacation absence, "is also without merit." A review of Rule 22 reveals that it applies only to regularly assigned and "cut off" employees. The Claimant's position was abolished on July 14, 1989, and Claimant "chose to wait until July 26, 1989, to make a displacement." The Carrier submits that during that period Claimant was "neither regularly assigned nor in cut off status." Therefore, the Carrier maintains that it was not obligated to call Claimant to fill the position. Finally, notwithstanding all of the above, the Carrier asserts that the organization "has not presented accurate information" about the time period July 24-28, 1989. According to the Carrier, "Foreman Williams worked his regular assignment from July 24-28, 1989, and was not on vacation as alleged."

A careful review of the evidence with which we have been presented shows that the Organization has failed to shoulder its burden to prove, with probative evidence, that any violation of the Agreement occurred on the cited dates. Claimant did not make an effort to displace any junior employee prior to July 26, 1989. This fact eliminates any basis for the first claim with regard to July 17-21, 1989.

Further, Carrier provided time sheets which document that Foreman Williams was on vacation July 17-21, 1989, and not the following week as the Organization has asserted. This obviously negates any necessity for the position to have been filled on July 24-28, 1989, as the regularly assigned employee, Foreman Williams, was available and, in fact, worked his position on those dates.

The Organization and Claimant have the burden of proving every material fact necessary to support the Claim of Agreement violation. That burden was not carried in this case is a series of allegations and conclusions, but is void of any supporting or probative evidence that Claimant was denied an opportunity to fill the positions in dispute. For the foregoing reasons, this claim will be denied.

A W A R D