Rule 38 reads, in pertinent part, as follows:

"RULE 38 - BULLETINED POSITIONS

(a) New positions and vacancies, excepting positions of Assistant Signalmen and Assistant Signal Technicians, which are expected to be of more than six months' duration shall be advertised as permanent within thirty (30) calendar days previous to or ten calendar days following the date such new position is created or a vacancy occurs. New positions and vacancies of more than thirty (30) calendar days and less than six 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 months, shall be readvertised at the end of six months as permanent. Bulletins showing location, title, hours of service and rate of pay will be made accessible to the employes affected for a period of ten calendar days. In gangs, bulletins will be posted on a bulletin board in the tool car. Employees desiring such positions shall file their application with the designated official, with copy to Local Chairman, within that time and an assignment will be made within five calendar days thereafter. Employes affected and the Local Chairman will be promptly advised of the assignment made. When an employe's location of headquarters is changed, position will be bulletined."

1. Carrier issued an advertising bulletin on July

22, 1991, which contained, among other

vacancies, the position here in contention.

2. Claimant was away from his assigned position

because of being on vacation which began on

July 22, 1991, and continued through August

8, 1991.

3. The assignment of the junior employee, who was

the only applicant for the position, was made

effective August 6, 1991.

4. Upon his return from vacation, Claimant submitted on August 12, 1991, a bid for the position in question. His bid was rejected as untimely.

In defense of its position, Carrier argued that the advertising bulletin had been properly posted; that Claimant's bid came too late for consideration for the position: that, in any event, Claimant did not possess the appropriate radio license which was required for assignment to the position in question.

From our review of the record in this case, the Board finds several points of concern. First, there is a statement by the Organization that the advertising bulletin was not posted in the "tool car" of the gang to which Claimant was assigned. No exception is voiced to Carrier's contention that the bulletin was posted "in the usual manner" or that there is no tool car assigned to the gang" and there has not been one within the memory of anyone now there." With nothing more on which to make a determination, the Board is unable to say whether or not the bulletin had been properly posted.

Secondly, and of more significance in our determinations of this dispute, is the fact that Claimant was off duty observing his vacation during the entire bulletining period. Claimant would not have seen the bulletin because of his absence on vacation.

Thirdly, and of most significance in our determinations of this dispute, is the fact that the record is completely devoid of any evidence that Claimant possessed the radio license which is required for assignment to the position in question. Therefore, the issue of proper posting of the bulletin is moot at best and is not determinative in this case.

On the basis of the relative convincing force of evidence as found in this case, the Board concludes that there has been no proven violation of Rule 38.

AWARD