(d) Employes who fill a vacancy pending assignment by bulletin must express their desire for the position by making application therefore, or a junior employee may be assigned thereto. In the event no applications are received, the senior furloughed employe in the applicable group, rank, and subdepartment in the applicable zone will be notified of his assignment to the bulletined position and must return to service within seven (7) days after so notified in writing of his obligation to report or failing to give satisfactory reason for not doing so, will forfeit all seniority rights in that group."

In this case, the junior employee who was working the Group 6 Soni Rail Detector position on a temporary basis pending assignment was assigned the position when it was bulletined over the more senior Claimant (a Group 4 operator) even though the junior employee did not bid on the position. We find that assignment to be inconsistent with the above stated Rules.

Rules 4(f), 8(a)-(c) and 9 clearly contemplate seniority, ability and the opportunity to qualify as factors for promotions which, as here, include transfers between groups in subdepartments. Under the facts of this case, those provisions were not allowed to operate. Although filling the Soni Rail Detector vacancy pending assignment by bulletin, the junior employee did not choose to apply for the position when it was bulletined. Under Rule 14(d), the Carrier could assign the position (here, to the junior emplolyee, even though he did not apply for the position), but only "(i)n the event no applications are received . " But, applications were received - 16 of them including Claimant's. Rule 14 (d) does not state that those applications must be from "qualified" applicants. That Rule only permits the kind of assignment made by the Carrier to the junior employee in the event "no applications are received." The Carrier's interpretation that it could assign the position to a junior employee who did not make application for the position notwithstanding the fact that 16 employees did apply for it, for all purposes, reads the seniority, ability and the opportunity to qualify provisions out of the Agreement.

Throughout, the Carrier asserted that Claimant was not qualified for the position. But, aside from making the assertion, the Carrier has not factually shown why Claimant, who as a Group 4 operator working with similar but more sophisticated equipment than the Soni Rail Detector, would have been incapable of qualifying for the Soni Rail Detector position. Although under Rule 8(b) the Carrier is "to be the judge" for ability determinations, without more of a factual demonstration by the Carrier, we cannot say that the Carrier has shown why Claimant should not have at least been given the opportunity to qualify for the position under Rule 9 as his seniority otherwise entitled him.

Third Division Award 29219 does not change the result. In that award, 'no contractual right to the vacancy in question" was found. Here, however, the above discussion shows that Claimant had a contractual right by virtue of his seniority to at least be given the opportunity to qualify for the position in question. Further, we cannot say that Claimant was not damaged in this case. Had Claimant been given the opportunity to qualify for the position, successful qualification by him may well have affected Claimant's wages (depending on the amount of work that position performed in the time the position existed) as well as future job bidding opportunities.

The claim will therefore be sustained. To make Claimant whole, Claimant shall be entitled to the differential in wages, if any, between those wages received by the junior employee during the time he held the Soni Rail Detector position as bulletined and those wages received by Claimant for that same period.

AWARD