position headquartered elsewhere. Notice of his selection for the position came on May 30, 1989. He was released to commence his new position on June 28, 1989.
The organization contends that the Claimant was improperly delayed in being released to his new position and should be made whole in various respects for such delay. The Carrier states that the Claimant was held in his previous position only until a replacement employee was assigned thereto, and that no rule violation occurred. Rule 21, Bulletin Procedure, Section E is the sole applicable Agreement provision, and it reads as follows:
It should be noted that the second paragraph was added some time following January 9, 1978, on which date the language was agreed to in a jointly signed Letter of Understanding.
The Board perceives no issue of "special service" here, so this exception is not in point. The Board also notes that the new position was scheduled to begin on June 12, 1989, so any claim for transferring the Claimant prior to this is without substance.
As the Carrier interprets the Rule, it had discretion to transfer the Claimant at any time up to 30 calendar days. The Carrier finds support in Public Law Board No. 2206, Award No. 26 (Eischen), concerning a 1977 incident involving a delay of 61 days in transferring an employee. 7n that dispute, the organization sought remedy only from the thirtieth day, and the Award sustained that request, stating:
This Board finds the Carrier places undue reliance on this Award. Since this was a 1977 incident, there was no 1978 Letter of Understanding in effect when the organization then initiated its claim. Thus, resolution of the issue was on the basis solely of the first paragraph of Rule 21E. Indeed, a close reading of the first paragraph would appear to be an obligation on the employee (who "must take" a position unless ill or on leave) rather than a restriction on the Carrier. This Board has no quarrel, however, with the concept that the Carrier perceives this as a 30-day limit in transferring employees, except for "special service" situations. It is the second paragraph which is at issue here. Here, the Agreement states that the employe "should be released . . . as soon as practicable after date of assignment". This goes considerably further than the first paragraph, and the Carriers argument that it continues to have a 30-day discretionary period is simply not
the case. Absent a "practicable" reason, delay in transfer is improper.
Having reached this conclusion, has it been demonstrated that it was "practicable" to move the Claimant at an earlier date? What has not been disputed here is that the move was made immediately upon a replacement employee becoming available to fill the position. This is hardly unusual. Further, there is no evidence that the Carrier failed to seek and obtain a replacement in an expeditious manner. while there might have been other means to fill the position temporarily, there is also no evidence, under the rule as revised in 1978, that the Carrier is required to take such steps.
As a result, the Board will deny the claim. However, this is not done on the basis of the Carrier's broad but erroneous interpretation that Rule 21E provides an unfettered 30-day period. Rather, the denial is based on the uncontradicted assertion-that the transfer was made in the accepted manner upon the availability of a replacement employee (and, of course, within the overall 30day limit).