The basic facts of this case are not in dispute. On August 31, 2000, a short vacancy existed on Coordinator Position No. 5025. The vacancy also expired on that date. Position No. 5025 is assigned to work from 7:45 A.M. to 3:45 P.M. The Claimant was the regularly assigned occupant of Guaranteed Extra Board (GEB) Position No. 6448 in the Crew Management Office in Topeka, Kansas. The Carrier did not call the Claimant to fill the short-term vacancy. Rather, it called overtime.
On October 8, 2000, the Organization filed a claim on the Claimant's behalf. In that claim the Organization contended that the Claimant, as the first out, qualified employee on the GEB, should have been called to do the work at issue. The Organization cited Appendix 10 in support of its position. In its October 16, 2000 denial of the claim, the Carrier insisted that Appendix 10 was not the controlling language in this situation. Instead, the Carrier maintained, because Coordinator Position No. 5025 is a "Promotion, Assignment, and Displacement" (PAD) or Partially Excepted (PE) position, the applicable section of the Agreement is Appendix 12. That language, the Carrier contended, gives Management the right of selection concerning the filling of such assignments.
The Organization insists that the language of Appendix 12 specifically exempts PE positions from the "promotion, assignment or displacement" Rule (Rule 8, above) of the Clerks' Agreement. It contends that Appendix 12 does not, however, exempt the Carrier from the provisions of Appendix 10, having to do with the calling of GEB employees. In support of that view, the Organization cites Public Law Board No. 4304, Award 32.
In response to the Organization's view, the Carrier argues that any assignments to PE positions are governed by the language of Appendix 12, Article 1 (quoted above). Under that language, the Carrier insists, there is no restriction on the Carrier's right as to whom it may select or assign to vacancies, including short vacancies involving Partially Excepted positions. It maintains that, absent a contract provision, the Carrier is free to select employees to be assigned to any and all vacancies on PE positions. Otherwise, the Carrier argues, there would be no need to have Appendix 12 in the Agreement.
During processing of the claim on the property, the Carrier offered numerous statements regarding the filling of PAD/PE vacancies. Despite the volume of these statements it is not completely clear that the PAD/PE vacancies to which the "testimonials" are referring to are of as short a duration as the one at issue. Further, many of the statements refer to posting or bidding - which is not at issue in this case. Moreover, the Organization provided written testimony of its own that short vacancies on PE positions were regularly filled from the GEB. In addition, the Organization points out that "temporary" vacancies are, essentially, a subset of permanent vacancies Form 1 Award No. 37641
whose duration is more than 15 working days, according to the clear language of Agreement Rule 11-A. On the other hand, "short" vacancies are those of 15 work days or less duration (Rule 14-A).
After lengthy consideration of all the evidence and the Awards cited in this case the Board is persuaded that the language of the Agreement supports the Organization's position.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.