revisions), as amended, which is by reference made a part of the record in this dispute.
1. There is in evidence an agreement (hereinafter called the current agreement) between the Carrier and its employes represented by the Petitioner, having effective date of April 1, 1947 (reprinted April 1, 1958, including revisions), a copy of which is on file with the Board and is hereby made a part of this submission.
2. On February 20, 1967, position of Leading Signalman on Signal Gang No. 10, Rio Grande District, Tucson Division, became vacant, due to incumbent thereof being dismissed from the service of the Carrier, and since the Carrier did not desire to fill the position, there was no occasion to advertise and assign same. Under date of June 22, 1967, notice was issued by Signal Supervisor at Tucson advising that position of Leading Signalman on Signal Gang No. 10 would be abolished at close of work on said date.
During period for which claim is made, Mr. P. O. Gowan (hereinafter referred to as claimant) seniority date of January 5, 1967, was assigned to position of Assistant Signalman, in training, on Signal Gang No. 10. Claimant worked and was paid the rate of his Assistant Signalman's position during period claimed.
3. By letter dated June 6, 1967 (Carrier's Exhibit "A"), Petitioner's Local Chairman submitted claim to Carrier's Division Superintendent on behalf of claimant for difference in earnings of Leading Signalman's rate of pay and claimant's rate of pay as an Assistant Signalman, and -expense allowance of two dollars per day until time that position of Leading Signalman on Gang No. 10 is advertised for seniority choice and assigned, alleging that claimant would have been successful applicant for the position. Carrier's Division Superintendent denied same by letter dated June 28, 1967 (Carrier's Exhibit "B"). Copy of Local Chairman's reply to that letter, dated July 4, 1967, is attached as Carrier's Exhibit "C".
By letter dated July 20, 1967 (Carrier's Exhibit "D"), Petitioner's General Chairman appealed the claim to Carrier's Assistant Manager of Personnel, who denied same by letter dated September 28, 1967 (Carrier's Exhibit "E"). Copy of General Chairman's reply to that letter, dated October 4, 1967, is attached as Carrier's Exhibit "F".
OPINION OF BOARD: On February 20, 1967, the Leading Signalman position in Gang No. 10 became vacant. The vacancy was not advertised under Rule 50 of the effective Agreement, nor was the position abolished until June 22, 1967, effective as of the close of work that day. The pertinent portions of Rules 50 and 51, hereinafter quoted and relied upon by the Petitioner, provide as follows:
"Rule 50. ADVERTISING POSITIONS FOR SENIORITY CHOICE. New positions and vacancies which are expected to he of more than six (6) months duration shall be advertised as permanent within thirty (30)~ calendar days previous to or ten (TO) calendar days following the date such new position is created or vacancy occurs. New positions and vacancies of more than thirty (30)
calendar days and less than six (6) months duration shall be advertised within the above time limits as temporary. Except when temporary vacancy is due to physical disability of employe, a position which has been advertised as temporary and does in fact exceed six (6) months, shall be readvertised at the end of six (6) months, as permanent."
The Petitioner concedes that there is nothing in the parties' Agreement which requires the maintenance of any position. However, the Organization argues that vacancies must either be advertised and assigned in accordance with Rules 50 and 57, or the position abolished.
The main thrust of Carrier's position is that Rules 50 and 51 do not become operative until after a decision is made to retain the position.
Applying the Rules to the facts presented, we are disposed to accept the position of Petitioner, hence, part (a) of the Claim is sustained.
Part (b) of the Claim is presented on the basis that Claimant performed the duties of Leading Signalman up to and including June 29, 1967. The proof presented on the property supports this portion of the Claim up to June 9, 1967. Therefore, we will sustain part (b) of the Claim for the difference between the rate received and that of Leading Signalman for the period April 16, 1967 to June 9, 1967.
Regarding part (c) of the Claim, the fact that the parties provided in Rule 51 for a $2.00 per calendar day expense allowance for each day held off of the newly acquired assignment, indicates that they anticipated some expense would be incurred as a result of the failure to transfer to the new assignment. Absent evidence that Claimant incurred any expense, we will deny part (c) of the Claim.