VS. ) PARTIES TO DISPUTE

"Claim of the System Committee of the Brotherhood that:

(l) The Agreement was violated when the Carrier failed to call and assign T. Baehr to a flagging foreman vacancy during regular Flagging Foreman D. Hulke's absence on May 27, 28, 29, 30, June 11, 12, and 16, 2003, and instead assigned junior employee L. Sprinkle (System File 7WJ-7377T/1367435 CNW).

(2) As a consequence of the violation referred to in Part (1) above,

Claimant T. Baehr, shall now `. . .be compensated for the difference

between the wages he earned as a welder on the dates under claim and

the earnings paid to Mr. Sprinkle, the junior employee for filling the

vacancy in the flagging foreman position in Mr. Hulke"s absence.""

This Board, upon the whole record and all of the evidence, finds and holds that the

Employe and Carrier involved in this dispute are respectively Employe and Carrier within the meaning of the Railway Labor Act, as amended, and that the Board has jurisdiction over the dispute involved herein.

Claimant holds seniority in various classifications in the Maintenance of Way and

On two occasions during May and .Tune 2003, Flagging Foreman Hulke was absent. The responsible Manager had a Rule 16 (b) request from Employee Sprinkle to fill the position, and lie assigned the work to Sprinkle. Claimant had greater seniority than Sprinkle, but the Manager denies having any written request front Claimant for the work.

The Organization contends that the Carrier violated the Agreement by assigning the Flagging Foreman work to Sprinkle rather than Claimant. The Carrier contends that because Claimant never made a written request, the Carrier had no obligation to assign him the work.

The primary issue is one of fact - whether Claimant had made a written request for the work. While the Organization contends that there is no evidence to refute Claimant's assertion that he filed a written request, the Board finds that the Carrier's evidence contradicts this: The Manager states that the claim "is not correct" because he had a written request from Sprinkle, and the Manager is reported to have stated more specifically that he never received a written request from Claimant. This evidence is sufficient to create a clear dispute of fact. Where there is an irreconcilable dispute of fact on a determinative point, the moving party, in this case the Organization, must be deemed to have failed to prove its position. See, e.g.jhirdDivisionAwardNo.30591,ThirdDivisionAwardNo.30635. We deny the claim on that basis.

Date.- (0

Neutral Member