"Claim of the System Committee of the Brotherhood that:

(1) The Carrier violated the Agreement when it failed to call and assign available and qualified E. T. Gang Foreman J. Brady to fill the vacant position on Gang D-046 on January 16, 17, 18, 19, 20, February 7, 8, 9, 10, 14 and 13, 2006 and instead assigned E. T. Lineman A. McIntosh to fill said vacant position. (System File NEC-BMWE-SD-4582 AMT).

(2) As a consequence of the violation referred to in Part (1) above, Gang Foreman J. Brady shall now be compensated a total of eighty-eight (88) hours at his respective time and one half rate."

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

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

The basic facts underlying the instant claim are not in dispute. On the dates in question, the Carrier assigned Lineman A. McIntosh to fill the vacancy of Gang Foreman J. McAteer in Gang D-046 from 10:00 P.M. - 6:00 A.M. McIntosh performed all work during his regular tour of duty; he performed no overtime work. McIntosh had passed the pre-qualification Gang Foreman test and possessed NORAC, Al%ff-2 and RWP qualifications, but was not qualified on the physical characteristics of the territory. The Claimant was qualified and available to fill the vacancy on an overtime basis.

The Organization recognizes that the Carrier is not precluded from assigning work at straight time during an employee's regular tour of duty instead of assigning it as overtime. The Organization maintains, however, that such an option was not available to the Carrier in the instant case because the employee to whom the Carrier assigned the work lacked one of the qualifications for the position, i.e. qualification on the physical characteristics of the territory. Consequently, the work should have been offered to the Claimant on an overtime basis in accordance with Rule 55(a). The Carrier asserts that it properly assigned the work to McIntosh in accordance with Rule 58.

Rule 58 provides:

"An employee may be temporarily or intermittently assigned to different classes of work within the range of his ability. In filling the position of an employee which pays a higher rate, he shall receive such rate for the time thus employed. If assigned to a lower rated position for reasons other than reduction in force or his request or fault, he will, except as provided in Rule 50, be paid the rate of his regular position. When work of an incidental nature is performed, employees performing such work will receive the rate of their

"There is no doubt that Carrier need not assign an employee at the

overtime rate when a qualified employee is available to be temporarily upgraded to perform the disputed work at the straight time rate. Third Division Award 31003. In this case no overtime was worked. However, the Carrier has designed a specific prequalification test to establish an employee's qualification to bid on, and receive, a Gang Foreman position. Rule 2 permits the Organization the right to assure that the application of such test is uniform to all employees. In this case, Greco had the opportunity to take this test and establish his qualifications for the Gang Foreman position, and had been requested to do so in the past, but declined, specifically stating that he had no desire to work in that position or fill this temporary vacancy. Under such circumstances, the Board finds that it was arbitrary for management to conclude that such position was within the range of Greco's abilities and to assign him to it under Rule 58 when there were qualified employees on that roster who could have performed the work, albeit on overtime."

In Third Division Award 37145, the Carrier again assigned a Lineman who had never passed the pre-qualification Gang Foreman test to temporarily fill a Gang Foreman vacancy rather than offer the work to the Claimant on overtime. The Board denied the claim and distinguished Award 36233 on the ground, among other grounds, that the Carrier's determination in Award 36233 that the Lineman it had

upgraded performed within the range of his abilities was arbitrary because the Lineman had repeatedly declined to take the pre-qualification test. The Board continued: -

"The language of Rule 58 permits the Carrier to temporarily assign an employee to different classes of work based upon its determination that such work falls within the range of his ability. This is different from the `qualification' language found in the Rules governing permanent assignments, as an employee temporarily upgraded under Rule 58 accrues no seniority in the class to which assigned. To the extent that Third Division Award 36233 implied otherwise, it is herein clarified.

"Under the facts of this case, and in the absence of a showing that the Carrier's determination that performance of the Gang Foreman functions on Gang P-283 to which he was regularly assigned fell within the range of Purcell's abilities was arbitrary, or that Carrier had an established practice of using the Claimant or other rostered Foremen to fill temporary vacancies on overtime, or that filling of this temporary vacancy ran afoul of the Agreement's requirements for permanently filling the Foreman position, the instant claim must fail."

Reading Awards 36233 and 37145 together, we hold that the temporary upgrade of an employee pursuant to Rule 5$ to fill a vacancy instead of calling a qualified employee on overtime does not violate Rule 55 as long as the temporary upgrade falls within the range of the employee's abilities. The Organization has the burden to prove that the Carrier's determination that the temporary upgrade fell within the range of the employee's abilities was arbitrary. The mere fact that the temporarily upgraded employee did not meet all of the qualifications to hold the position permanently does not meet the Organization's burden of proof.

In the instant case, the Organization rested its case entirely on McIntosh's failure to meet one of the qualifications for the Gang Foreman position, i.e. his failure to be qualified on the territory's physical characteristics. Unlike the

09-3-NRAB-00003-070210 (07-3-210)