"Claim of the System Committee of the Organization (GL-11129) that:

1. Carrier violated the Agreement on October 24, 1993, when it failed

to fill Position No. 173 while it was under advertisement.

2. As a result of the above violation, Carrier shall compensate

Claimant W. D. McDaniel eight (8) hours at the applicable overtime

rate."

Parties to said dispute were given due notice of hearing thereon.

On October 24, 1993, while Position 4EWB-173 at the Centralized Waybilling Center was vacant and under advertisement, Claimant was called to fill the vacancy at the overtime rate. However, prior to his leaving home, the Carrier contacted Claimant and told him not to report. This claim followed seeking payment to Claimant at the overtime rate.

The Carrier states that the decision not to fill the position in this fashion was based upon the fact that work volumes or loads did not warrant the filling of the position at the overtime rate. The Carrier further relies upon Rule 15:

"Rule 15 - Temporarily filling Bulletined Positions

Bulletined positions ma% be filled temporarily pending an assignment; and, in the event no bids are received from employees covered by this agreement, assignment may be made by appointment, with bulletin to be issued accordingly."

As the Organization recognizes, a plain reading of Rule 15 shows that the Rule is permissive with respect to the Carrier's temporarily filling a position that has been bulletined ("Bulletined positions FU be filled temporarily pending an assignment" lemphasis added). As such, and because no Rule mandates the Carrier to fdl the position, whether the Carrier chooses to exercise its managerial prerogatives to fill the position is subject to review by this Board for arbitrary conduct. Third Division Award 31708.

The Carrier demonstrated a non-arbitrary reason for its decision to ultimately not assign the work to Claimant. According to the Carrier, work volumes or loads did not warrant the filling of the position at the overtime rate. Further, according to the Carrier as stated on the property "... on the date of this claim work volumes were not such that the Carrier felt they needed this position to work." There is no evidence in this record that those assertions were inaccurate or that the "work unnecessarily piled up or was inordinately assigned to other employees" on this date. Award 31708, supra.

Public Law Board No. 2470, Award 47 does not change the result. In that case, the record disclosed that work was distributed to another employee ("... the Carrier diverted the third shift Clerk-Operator to work the Assistant Agent's position."). Similarly, Third Division Award 19047 is not persuasive. In that case, the Board found that the upgrading of a Laborer to fill a vacancy left Laborer's work to be performed. Here, there is no evidence that the work of the vacant position was improperly distributed to others.

Other Rule provisions argued will not be considered as they were not raised on the property.

AWA