(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Western Pacific Railroad Company

1. The Western Pacific Railroad -ompany violated the current Clerks' Agreement when it used the incumbent of an excepted position to fill a vacancy on an Agreement covered position Octuber 4 through October 21, 1971; and,

 2. The Western Pacific Railroad Company shall now be required to compensate Mr. R. L. Mims for an add itiona:>ight (8) hours at pro-rata rate of Diversion and Special Handling Clerk each date October 4, 5 and 6, 1971; and,

 3. The Western Pacific Railroad Company shall now be required to compensate Mr. G. Wigley for an additional eight (2) hours at pro-rata of Diversion and Special Handling Clerk eact, date October 7, 8, 11, 12, 13, 14, 15, 18, 19, 20, 21, 1971.

 OPINION OF BOARD: This dispute aro6e wne.: the Carrier permitted the incum
 bent of an excepted position to work a vacation vacancy
 on the position of Diversion and SFeci.a dantiling Clerk, which is covered by
 all of the Agreement rules. The Emnloye.z~3 allege that this was an Agreement
 violation.

 During October 4-21, 197:.: ther.· was a vacation vacancy on the position of Diversion and Sp under the Agreement. Under date of 0=:obei 1, 1971, Mrs. Elsie Gonsalves, the incumbent of a Rule 2 (b) excepted pozitior, wrote the following letter:

Mrs. Gonsalves worked the three-we:_k vara:i_i vacancy, resulting in claims being filed on behalf of two junior empi,;c_s who held bid positions under the Agreement. In support of the claims !1.. Employees' Submission argues that: (1) the duties of employees workinz in expepted positions are subject to restrictions provided by the rule .-.tht.izing the excepted pesitions (Rule 2 (b ))and, in consequence, it is no` -zrmi~=·ble to assign work to an excepted employee whic in effect transferred work from a fui:,.tincd position to an excepted position, which is not permitted by the Agraemt--_; and (3) the vacation vacancy of an Agreement-covered position such as the Diversion Clerk position must be filled by employees covered by all Agreement rules.


The Carrier advances a contrary view on each of the foregoing arguments, asserting that the vaca been filled on this property since the inception of the National Vacation Agreement, namely:

        (1) by the use of furloughed employes;


          (2) by offering the vacancy to assigned employes in seniority order to be filled for the entire absence of the vacationing employe.


The Carrier contends that under (2) of the above quotation, which applied in the instant facts, Mrs. Gonsalves was the senior qualified employee making application for the position of Diversion Clerk. She was not required by Carrier to occupy the position, but voluntarily exercised seniority to work the position for three weeks.

 On the basis of the foregoing, and the whole record, we conclude that Carrier's contentions are sound and we shall therefore deny the claim. The dispute here involves a s vant that Mrs. Gonsalves bid for the vacation vacancy while occupying an ex-off cepted position. With respect to the Employees' arguments set out in (1) and (2) above, we think the record makes it clear that Mrs. Gonsalves moved from her regular excepted position while working the vacation vacancy of a bid position and she therefore Further, since there is no record evidence that Mrs. Gonsalves concurrently performed the duties of is excepted from certain Agreement rules by Rule 2 (b) and, thus, the restrictions of an excepted po occupying that position. These ri6hts remain the same in respect to bidding on an Agreement-covered position, on the basis of seniority, as the rights of an Employee who occupies an Agreement-covered bid pusition.

        For the foregoing reasons we shall deny the claim.


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


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 20067 Page 3

                    Docket Number CL-20176


        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 14th day of December 1973.