The following claim is hereby presented to the Company in behalf of David F. Gilchrist. (861-92 DH013)

Claim earnings of B. Crowley, position #63 CATS Clerk on following days under Rule 12(g) and (h) of TCU Agreement. Position vacated by R. Muskopf:

November 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, 1991. December 1, 2, 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 1991."

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

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act as approved June 21, 1934.

Third Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

In mid-November 1991, W. Minkler, a Carrier Supervisor, was assigned to assist in the implementation of new waybilling and EDI on the Delaware & Hudson. To fulfill this responsibility, Minkler was unable to perform his regular supervisory duties at Clifton Park. As a result, the Carrier promoted R. Muskopf from his position as Customer Service Clerk #63 to fill Minkler's position on a temporary basis. The Carrier then assigned B. Crowley, who was then the senior furloughed clerical employee, to fill position #63.

On January 10, 1992, the Carrier posted a bulletin advertising a vacancy on Position #63, advising the duration of the vacancy was temporary. Being the senior qualified applicant for the position, Crowley was awarded the position on January 17, 1992.

The organization-asserts the Carrier had an obligation to advertise the vacancy in November 1991 because it was evident the duration of the vacancy would exceed two weeks. The Organization cites the following portions of Agreement Rule 12 - Bulletining New Positions and Vacancies:

1'(g) Vacancies of a known duration of two weeks or more, other than annual vacations will be bulletined.

(h) A temporary position which becomes permanent through any cause shall be bulletined."

The Carrier denies it had knowledge of the fact that the vacancy would last more than two weeks. It avers it promptly bulletined the position when it became apparent temporary reassignment would take longer.

Cases of this nature are difficult because it is impossible for this Board to know when the Carrier had actual knowledge that the job would continue to be vacant for another two weeks. The Board also recognizes the difficulty faced by the Carrier in trying to decide if the vacancy must be bulletined. Nevertheless, the Carrier cannot simply fill a job on a day-to-day basis for several months without bulletining it pursuant to Rule 12. At some point, a presumption arises that the Carrier knew this would be a continuing vacancy. Certainly, if the Carrier had issued its bulletin during the second or third week, that presumption might be a weak one. When, however, the Carrier does not issue a bulletin for almost two months after the job has worked, the presumption becomes quite strong against the Carrier. In this case, the Carrier has given us no reason to believe it did not know the vacancy would continue for more than two weeks. We conclude the Carrier violated the Agreement by not bulletining the position earlier than it did. The Board, however, will sustain the claim only for the period commencing November 25, 1991,. giving the Carrier some benefit of the doubt.

AWARD