(Brotherhood of Railway. Airline and Steamship Clerks,
 PARTIES TO DISPUTE: ( Freight Handlers, Express and Station 11hployes
 (The Baltimore and Rio Railroad Company

(1) (terrier violated the Agreement between the Parties at Willard., Ohio, when it "stepped-up" Mr. Paul E. Winans, incumbent Stock Clerk position C-197 at the Mafia Store Roam, rated $54.41 per day, to a vacation-vacancy arising on General Foreman Motive Power Store Roam position C-182, rated $56.90 per day, per his request, for fifteen (15) work-dates - October 10 through October 28, 1977 - and required Mr. Winans to work both General cFOremnn Motive Power Store Room position to which stepped-ap, and the Mafia Store Room Stock Clerk position vacated, failing and refusing to fill Stock Clerk position C-197 vacancy with Mr. M. E. King, the senior regularly-assigned employee who vas on record as desiring to fill short vacancy on Stock Clerk position C-197, sad
compensate Mr. Paul E. Winans as additional eight (8) hours' pay (54.41) for each date: October 10, 11, 12, >,3, 14, 17, 18, 19s 20, 21, 24, 25, 26, 27 and 28, 1977, and

 (3) Carrier shall compensate Mr. M. E. King eight (8) hours' pay at the rate at time and one-halt ($81 ..(a1): October 10, 11, 12, 13, 14, 17, 18, 19s 20a 21, 24, 25, 26, 27 and 28, 1977.

 OP>CP HOAX: Claimant (Winners), a Stock Clerk, vas assigned the position of
 General Foreman Motive Power for a short vacancy when the incumbent of that position went on a three week vacation. Claimant voluntarily sought the position of General Foreman by filing a written request with the designated officer pursuant to Rule 24 of the Agreement. After he was working the Foreman position there is much disagreement abort what happened,
performed same of the duties that are also performed by his Stockman position.
 The Organization contends that Claimant (Winans) was working the two positions and re
 futes the Harrier's position the Stockman position was "blanked", The Organi
 zation also contends that Claimant (Winans) removed from this position (Foreman) and
 required to work the Stockman position. This, it is submitted, is is violation
 of Rule 24(b) which provides, is pertinent part, "An employee held off or removed
 from his regular position sad required to fill a vacsney...is entitled to a mini
 mum of eight (8) hours' pay at pro rata rate for each position." Therefore, the
                    Docket Number CL-23868


Organization claims that Claimant (Winans) is not only entitled to the Foreman's rate which he had been paid but additionally for eight hours' pay for the fifteen days on the Stociwan's position. Additionally the Organization contends that the Stockman's position was never blanked and that another Claimant (King), a yard clerical, who had sought the short vacancy on the Stockman position pursuant to Rule 24 should have been given that position. Fifteen days pay at the rate of time and one half are sought for this Claimant (King).

 The Carrier states that the Stockman Claimant (Winans) was moved to the position of Foreman and was removed from that position. The stockmen functions that were performed by this Claimant are alleged to be part of the normal duties of the Foreman and are not intermingled with the duties of the Stockman. The Carrier states that the position of Stockman was b was no stockmen vacancy. Furthermore, the Carrier contends that if the Claimant (Winans) is his position of Foreman was required to do work exclusively to his old position of Stockman, such conduct would be permissible because of Rule 5 and Rule 16 of the Agreement. The Carrier states that since there was no position apes, the Stockman's position having been blanked, there was no position foe the yard clerk Claimant to move to and consequently no violation of the Agreement.

 The proof that the Agreement had been violated submitted by the Organization were affidavits by seve are not intermingled. The Carrier states that its investigation revealed that both the Stockman anti Foreman positions include duties of ordering and issuing material, tekjag stock and handling of related paper work.

 This Board x111 not consider the position that Rules 5 and 16 would insulate the terrier from claims ewes if the position of the organization is as stated. No mention of these rules was raised on property and procedurally cannot now be raised at th
Nowhere is the Agreement is there s provision which prohibits the "blanking" of positions. Absent such prohibition this Hoard considers it a right of the Carrier to leave positions unfilled or blanked. As the Carrier stated is its submission it could have blanked the Foreman's position, and under the terms of the National Vacation. Agreement could have had other employee perform 29% of the work of that unfilled position. This the Carrier did not do. It further states that ii the organization's position be taken literally, the Claimant would have been moved back to his Stockman position and the Forman position would have been blanked sad the only variance fray the Agreement would have merely been an overpayment to Claimant.

 The Board reads Rule 24(b) as stating that if Claimant had been waved back (held off or removed fTam his Foreman position) sad required to work the Stockman position he would be entitled to eight hours' pay at a pro rata rate fan' each position. It is clear from the correspondence of the Carrier that the Carrier always _ronaidered the Stockman Claimant (Winana) as filling the position of
                    Award lumber 23856 page 3

                  Docket Number CL-23868


Foreman. The Carrier claims that he was working some duties of that position which are not intermingled with the duties of the StocPMan positions but which are the same as some of the duties of the Stockman position. The Claimant (Winans) was; for the three weeks is question, filling the Foreman position.

 The issue for this Board was to decide whether both the Foreman position and the Stockman position have similar stockman duties. Initial correspondence of the Carrier stated that each position had similar but sot intermingled duties. The Organization submitted proof through the affidavits that the duties were not intermingled. The matter was clarified by the letter of September 18, 1979 Prom the Carrier's Director of Labor Relations to the General Chairman of the Organization. This letter stated:

        "We here again investigated the circumstances surrounding this claim is light of the allegations contained is your letter of July 31P 1979. The local officers absolutely insist that despite the affidavits attached to your letter, the ForemanStoclmaa position at Willard is required assist the Stockman in the performance of their duties sad the work required on those latter assignments is, therefore, also a part of the Foreman-Stockman position."


It does not follow that because a Foreman is required to assist a stockman is his duties such assistance becomes part of the Foreman's duties independent of a stockman to assist. In this case there was no occupant of the Stockman position, therefore no one to assist. The Foreman during this time performed some of the duties of the Stockman position. The next issue for the Board to disease is the quantum of work allowed to be performed on a "blanked" position.

 The Organization's contention that Claimant (Winans) .,mss roved prom the Foreman position and placed back on his Stockman position is not only refuted by the denial of the (arrierp but is further refuted by the fact that he was paid the Foreman rate fair the entire period. If such a claim were to be sustained the Organization would have to prone that the primary duties of Claimant (Winans) during the time at issue were stockman duties and that any performance of Foreman duties occupied a record is there any proof of the amount of time the Claimant (Winans) spent performing duties of the Stockman position. It is only established that Claimant (Winans) worked part of the time doing the duties of the blanked position. The Board holds that he was not held off or removed from his regular position, which for the three-week period was the Foreman position, therefore Rate 24(b) was not violated.

 Because the Stockman position was worked in pert and was not the blanked, it should have been awarded to the Yard Clerk (King). We agree with the rationale of the Board in Award 15459 which stated:
                    Award Number 23856 ?age 4

                  Docket Number CL-23868


        "This Board can find noth_tng is the Vacation Agreement or the Clerks' Agreement which could permit it to apply the same regime to vacant positions created by a regular employe's moving from his ,job to occupy a vaca position. The Referee regrets this, believing that the "burden test" of Article 6 and the "25 percent of the workload teat" of Article 10(b) contribute to utilization of a Carrier's forces at no disadvantage to its employee. Nevertheless, the tests of Articles 6 and 10(b) can be extended to the present situation not by this Board but only by agreement between the parties."


In determining the damages to the two Claimants, this Board can find and has been submitted no pertinent provisions in the Agreement to determine how compensation should be made to the Claimants, therefore we x111 be governed by the "make-whole" concept of damages. The Stockman Claimant (Winans) has suffered no loss. As would be the rise if he had been the regular occupant of the Foremen position temporarily assigned to a lower rated position, he has been paid the rate of the Foreman position. The Yard Clerical Claimant (Ring) is awarded the difference between wh No. 6038 and his regular assigned position.

        FILINGS: 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 (terrier and the Employee involved is this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 193;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement wan violated.


                          A W A R D


        Claim sustained in accordance with the opinion.


                                NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Third Division


ATTEST: Acting Executive Secretary

      Rational Railroad Adjustment Board

      ., .U


                                        i


      8 ' e BI88 - - Administrative Assis


Dated t tant
        Chicago, Illinois, this 28th day of April 1982. ~~:-_,--