position to which Claimant was force assigned was not a "temporary" position as mentioned in the rule. Secondly, the Carrier cites the provisions of Article 8, "Filling Vacant Positions," and Article 35, "Promotion by the Carrier," as concerns the force assignment of an employee when a "permanent" position that has been advertised fails to attract a qualified bidder.
In particular, the Carrier cites Article 8.3(e), wherein it states: "In the event no bids are received from qualified employees for an advertised vacancy, the Carrier will promote, if applicable, in accordance with Article 35 of this Agreement." In this latter regard, Article 35.1 reads:
There is no question that the position to which Claimant was force assigned was advertised and bulletined as a permanent position. Award Bulletin BG-2002 of September 6, 2002 shows the dates of bidding for the position to have been from August 23, 2002 to August 29, 2002, with a designated headquarters point in Waterville, ME. The Award Bulletin also lists Mr. N. L. Deprey as being awarded the position, pending qualification. There is no question that Mr. Deprey was subsequently not able to demonstrate that he was qualified for the position, and that there was a need to force assign someone to cover the position.
It is also evident that Claimant was aware that the position was of a permanent nature. Claimant said the following in a letter of claim: "According to Awards-BG2002, this job was awarded to Nelson Deprey (pending qualifications). When Mr. Deprey failed to pass the required NORAC qualification that week, Mr. Henry was force assigned to the position." In other words, in noting that the position was bulletined and initially awarded to another employee, pending qualification, Claimant was aware that the position was advertised as a permanent position.
The Board is also not persuaded by Organization argument that the position to which Claimant was force assigned be viewed as a temporary position because it was abolished after 22 days.
In this latter regard, the Board has studied those provisions of Article 8.3(a) wherein it states, as referenced by Organization: "Positions subject to advertisement will be newly created permanent positions and vacancies expected to be more than thirty (30) days." The Board has also examined Article 8.4(a), which reads: "Temporary positions are positions of 30 days or less and permanent positions pending award."
Careful examination of the above referenced rules leads to the conclusion that they have absolutely no bearing on the instant dispute. As concerns Article 8.3(a), nothing of record shows the position at issue to have been advertised as other than a newly created permanent position. It was not, as the language of Article 8.3(a) implies in making reference to the 30-day period of time, the advertisement of a vacancy expected to be more than 30 days. And, in regard to Article 8.4(a), nothing of record shows that the position to which Claimant was force assigned was a permanent position that was "pending award." A bulletin award had been made, but the sole bidder was found not to be qualified. The Carrier therefore had the right to invoke Article 35.1, supra, and force assign Claimant to the position as the junior qualified employee on the seniority roster.
That after advertising and filling the position as a permanent position the Carrier subsequently found reason to abolish the position after 22 days does not serve to define or place it in the category of a temporary position. Absent restrictive rules, the matter of what positions are to be bulletined as permanent positions and how long they are to remain in effect has generally been recognized as a matter for a carrier to determine in the fair and reasonable exercise of the management of its property in the best and most efficient way.
On the basis of the above considerations the Board does not find the rules relied upon by Claimant and the Organization to support the instant claim. The claim will, therefore, be denied.
Robert E. Peterson
Chair & Neutral Member