Claim of the Organization by letter dated December 7, 1993 is that Carrier violated the Agreement by denying Claimant's right to fill a vacation vacancy. The organization rests its claim on rule 12 and Article 12 (b) of the National Vacation Agreement. The Organization argues throughout the handling of this claim that the Carrier has always used the principle of seniority and Rule 12 of the Agreement. Article 12 (b) was not utilized as there were no vacation relief positions. The Claimant followed the regular practice of requesting the position and was denied his Agreement: rights to the vacancy.
The Carrier argues that no Rule or Article of the National Vacation Agreement was applicable in these circumstances. While the position was open due to a vacation, the Carrier utilized other on-duty Sheet Metal Workers to perform the needed work. No overtime was paid and the Carrier maintains that the position wars never vacant. Accordingly, the Claimant lacked seniority rights under the Agreement.
The Board is aware that associated herewith are additional disputes over the GE Contract, greater expenses and the movement of other employees if this position had been filled. The Board has also carefully followed the arguments on past practice, availability and the signed statements. Central to a resolution of this dispute is the language of the Agreements as applied to the circumstances of this claim, as clear language mist control over practice.
The central elements of dispute relate to Rule 12 of the Agreement and Article 12 (b) of the National Vacation Agreement,. Rule 12 states as follows:
The Organization alleges throughout this claim that a vacancy existed and that the senior employee was not given preference in filling the position. Additionally, Article 12 (b) of the National Vacation Agreement states in part: Form 1 Award No. 13025
The Board's application of the Agreement language to these circumstances forces us to deny the claim. The National Vacation Agreement takes precedence and states clearly that such absences "will not constitute vacancies... under any agreement." Therefore, this was not a vacancy and Rule 12 was inapplicable. Furthermore, when the Carrier fills the position it is guided by the clear language of making an "effort... to observe the principle of seniority." In this instant case, the record contains evidence that such effort was made. The Carrier asserted without contradiction that to permit the Claimant to fill the position would have increased its costs. The Board finds that the Carrier correctly pointed to Article 12 (a) of the National Vacation Agreement in supporting its right to act as it did in this case at bar. Article 12 (a) holds that °a carrier shall not be required to assume greater expense..." and the facts support the Carrier's actions. If the Claimant had taken the position, his position would have to have been filled at the penalty rate, while the employee who worked the vacation opening was not required on his own position which did not need to be filled.
Accordingly, finding clear contract language; no applicability of practice as a determinant; and the right of the Carrier to consider, but not mandate assignment by seniority, the claim must be denied. The Board finds no violation of the Agreement.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.