The Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended, that this Board is duly constituted by Agreement dated March 20, 2008, this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.
In January 2009 J. Mallette was regularly assigned as an assistant foreman-flagman on the Baltimore Division working in the vicinity of Mile Post CFP 111.&. January IO and 11, a Saturday and Sunday, were Mallette's regularly assigned rest days. The Carrier had determined that work on his assignment was necessary for those two days, but Mallette was not available. Consequently, the
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Carrier called K. Cain, who was regularly assigned as a production track foreman at the time, to perform this work. A claim was filed on behalf of Claimant, who is junior to Cain and was regularly assigned as an assistant foreman on Mobile Gang 6D72 at the time. It is the Organization's position that this was a temporary vacancy and should have been filled by an employee in the same grade, as was Claimant, or by an employee in a lower graded position. The Organization argues it was improper to fill the vacancy with a higher rated employee.
The Organization relies primarily upon Rule 3, Section 4(a), which states, in pertinent part, as follows:
We find that the Organization's reliance on this provision is misplaced. In Award No. 39031, the Third Division, with Referee Wallin, held that " . . . Rule 3, Section 4(a) appears to apply only where it is known that there is a new position or vacancy that requires advertisement and award. It allows the vacancy to be filled temporarily while that process is conducted." This Board reached the same conclusion in Award No. 51.
In the instant case, there was no vacancy that required advertising and award. The work performed was part of J. Mallette's regular position. He was unavailable to perform his regular assignment on the two days in question. He did not vacate the position, as the Organization has argued. Accordingly, we find no support for the Organization's argument that Claimant held a preferred right to this work over Cain. The Agreement, therefore, was not violated.
AWARD: Claim denied.