Form 1 THIRD DIVISION Award No. 29826
 Docket No. MW-29650
 93-3-90-3-645



PARTIES TO DISPUTE:

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

Brotherhood that:


        (1) The Agreement was violated when the Carrier failed to properly post Advertisement No. TCOM-89-6 dated July 31, 1989 on the Youngstown Seniority District.


          (2) The Agreement was further violated when the Carrier failed to properly post Advertisement No. TCOM-89-9 dated September 5, 1989 on the Youngstown Seniority District (System Docket MW-741).


        (3) As a consequence of the violation in Part (1) above, Messrs. R. D. Summers, P. C. Hake, D. Edmondson and J. E. Smith shall each be allowed:


            '*** their applicable C1-1 rate, 10 hours for each date and any overtime, along with weekly expenses from the effective date of the award 8/14/89 through 9/25/89 and continuing as per Rule 26 (f). Mr. J. Smith is claiming Cl-1 rate from the effective date of Adv. TCOM-89-9 award account of this advertisement not being properly posted. Claim also includes any overtime and weekly expenses, also continuing as per rule 26(f) until all claimants are given the opportunity to work the positions. Since they were not

        . given an opportunity for promotion,

            this is a violation of Rule 40.'


        (4) As a consequence of the violation in Part (2) above, Messrs. R. Koteles and M. Vodhanel shall each be allowed:

Form 1 Award No. 29826
 Page 2 Docket No. MW-29650
 93-3-90-3-645
 ' C1-1 rate, 10 hours for each
 date from September 18, 1989 through
 November 2, 1989 and continuing as
 per Rule 26 (f) until both claimants
 are permitted to work the TCOM C1-1
 positions. They are also claiming
 $5.00 per work day for expenses for
 each date as outlined for the TCOM
 Gang. Mr. Koteles is claiming time
 made by D. K. Malloy ( C1-1 Sen.
 9/27/82 ) and Mr. Vodhanel is claim
 ing time made by L. Nemenz ( C1-1
 Sen. 5/17/82 ). "'

 FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:


The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


Parties to said dispute waived right of appearance at hearing thereon.


This dispute involves a Claim by the organization that carrier failed properly to post openings for Class 1 Machine Operator positions on the Tie Change Out Machine (P-811) on Carrier's Youngstown Division. The organization alleges that as a result of Carrier's violation of Rule 3, the claimants were not afforded an opportunity to place bids for positions. Rule 3 reads in pertinent part as follows:


          "Section 3. Advertisement and award.


              (a) All positions and vacancies will be advertised within thirty (30) days previous to or within twenty (20) days following the dates they occur. The advertisement shall show position title, rate of pay, headquarters, tour of duty, rest days and designated meal period.


              (b) Advertisements will be posted on Monday or Tuesday and shall close at 5:00 P.M.

Form 1 Award No. 29826
 Page 3 Docket No. MW-29650
 93-3-90-3-645
 on the following Monday. Advertisement
 will be posted at the headquarters of the
 gangs in the sub-department of employees
 entitled to consideration in filling the
 positions, during which time an employee
 may file his application."

On July 31, 1989, the Chief. Engineer bulletined 11 Class 1 Machine Operator positions and one Foreman position on the PlasserTheurer Tie Change Out Machine Kalamazoo, Michigan. The awards to that bulletin were posted August 14, 1989. On September 5, 1989, the Chief Engineer's office bulletined seven Class 1 Machine Operators for the TCOM at Dunkirk, New York. The awards for that bulletin were made on September 25, 1989. All of those positions were abolished on November 15, 1989 when the TCOM ceased operation at the end of the production season.


By letter of September 25, 1989, and by letter of November 2, 1989, the organization filed two separate claims on behalf of Claimants alleging violations of Rules 3, 4 and 40 of the Agreement. Attached to those claims were statements from several Youngstown Seniority District employes asserting that the TCOM advertisement had not been properly posted. The claims were properly processed up to and including the Carrier's highest appellate officer.


The facts and positions of the Parties in this case are nearly identical to those in Third Division Award 27592, involving the same Parties as in the present case. In that Award, the Board held as follows:


        "...[T]he Carrier's response [to the Organization's claim] was simply to state that the advertisement was posted. In its further appeal, the organization presented a statement from four Mingo Junction employees complaining of incorrect posting. Again, the Carrier replied that the advertisement was posted.


        It is entirely correct, as the Carrier contends, that in instances such as this it is the Organization's responsibility to bear the burden of proof. Beyond what is recounted above, however, it is difficult to see what further the Organization could have provided in defense of its claim.


        It then became the Carrier's responsibility to reply by more than a simple assertion. For example, a statement by the Supervisor or

Form 1 Award No. 29826
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 93-3-90-3-645
 others at Mingo junction would have been in
 order.
 Beyond such assertion, the Carrier's only
 other response came in its submission to the
 Board. This, of course, is too late and may
 not be considered by the Board, since it was
 not raised on the property. The further
 evidence was a showing that certain Mingo
 Junction employees had bid on positions listed
 in Advertisement No. 92. This, however, does
 not conclusively prove that the advertisement
 was posted at Mingo Junction, since, as the
 Organization states, employees may have seen
 the advertisement elsewhere.
 The claim as presented to the Board seeks for
 the Claimant the loss of pay he suffered by
 being denied the proper opportunity to bid on
 the position. This is not 'penalty pay'
 levied on the Carrier; it is simply the
 appropriate remedy to make the Claimant whole
 based on violation by the Carrier of Rule 3,
 Section 3 (b)."

 For the reasons set forth in Award 27592, the instant claim is sustained with respect to wages lost by Claimants as a result of Carrier's violation of the Agreement. There is no evidence on this record, however, to support awarding Claimants "weekly expenses" as claimed in the latter section of Parts (3) and (4) of the claim. Accordingly, Claimants shall be made whole for only the difference between their wages during the period at issue and what they would have earned but for Carrier's violation.

                        A W A R D


      Claim sustained in accordance with the Findings.


                          NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division


Attest: Q: ~. 1 _ ,J , ,
 Catherine Loughrin -h nterim Secretary to the Board

 Dated at Chicago, Illinois, this 29th day of September 1993.