Similar decisions are contained in several other Awards including Awards 7591, 1538, 1293, 1216, 1177, 1150, 1124, 934, and 792.

The Organization argued that the use of the word "shall" instead of the word "may" in Rule 6 (a) 3 distinguishes the rule from the rules considered by your Honorable Board in the aforementioned Awards. The purpose of the rule is clearly the same. Rule 6 (a) 2 reads "May be filled" and the use of "shall" instead of "may" in Rule 6 (a) 3 was adopted to eliminate the option to bulletin or not to bulletin. It has no effect on whether a vacancy will be filled. It was manifestly not the purpose of the Rule in the Awards quoted to provide that vacancies "may be filled." No Rule would be necessary for that purpose. The considered purpose was to provide that short term vacancies "may be filled without bulletining." The same is true of Rule 6 (a) 2 and 6 (a) 3 here involved. The provisions thereof prescribe that such vacancies shall be filled without bulletining—not that they must be filled.

The word "shall" instead of "may" was used in Rule 6 (a) 3 of the current Agreement due to the fact that on this property employes with Class 3 seniority holding Rule 1, Section (d) positions can establish seniority in Class 1 or 2 only by assignment to a bulletined position in the higher classes. In Class 1 seniority districts embracing a large territory where bulletins are issued by several officers it was considered desirable to eliminate any uncertainty as to when positions or vacancies were duly bulletined and when an employe obtained higher class seniority. This was the reason for the use of the word "shall" in the rule before us and there was no intent to create a guarantee of any kind whatsoever.

Also, at times it is impossible to fill such short term vacancies and since other rules of the current Agreement specifically allow for conditions where positions will not be filled during the absence of regular assigned employe, there can be no doubt that proper exceptions would have been included in Rule 6 (a) 3 had there been any intent to make a rule providing that positions would be filled each and every day with some employe.

Thus it is evident from the language of Rule 6, the express purpose of the rule, past and current application of the rule, the provisions of other related rules and Awards of the Board on similar rules, that Rule 6 (a) 3 or any other portion of Rule 6, does not guarantee that each position will be filled each working day during its life. If a guarantee had been intended (which the Company denies) there is no question explicit language would have been inIcluded to render the rule consistent and not in conflict with various other provisions of the current Agreement.

It is evident therefore that the Organization is pressing the instant claim merely as a gamble in which it hopes to change the rules of the current Agreement by interpretation of this Board, contrary to the Railway Labor Act.

In this case the Organization claims that Rules 28, 30, and 6 (a) 3 require that claimant, an AWOL employe, should have been called or in any event paid for a day on which another AWOL iceman left his Rule 1, Section (d) position unprotected. As a vain attempt to support such a groundless and irresponsible claim, reference is made to Rules 28, 30, and 17 (b) which, as has been shown, have no bearing on the facts. Reference is also made to Rule 6 (a) 3 with carefully calculated omission of the fact the positions in Rule 1, Section (d) come under Rule 6 (a) 1 and that the provisions of Rule 6 (a) 3 for positions covered thereby are not amenable to the interpretation and construction the Organization now attempts to place upon them. The provisions

of the Agreement are clear and unambiguous and do not lend themselves to the meaning the Organization seeks.

CONCLUSION

The Company has conclusively shown herein that the claim of the Organization in this Docket is entirely lacking in merit or Agreement support and should in all respects be denied and it requests this Honorable Board to so order.

(Exhibits not reproduced).

OPINION OF BOARD: This incident took place at Roseville, California, when on August 26, 1962, the regular assigned Iceman, with hours from 3 P. M. to 11 P. M., laid off from this shift. The Company did not fill the vacancy and the Organization regards this as a violation of its agreement with Carrier, dated June 1, 1952, when it failed to call the senior qualified unassigned employe to fill the incumbent's vacancy.

The Organization contends that the incumbent laid off account of illness; that Claimant was the senior qualified unassigned employe, available and entitled to be called to fill the vacancy under the clear and unambiguous provisions of Rules 6 (a) 3, 28, and 30 of the Agreement. Pertinent portions thereof, are:

"BULLETINING POSITIONS

"Rule 6.

(a) 3. New positions or vacancies of thirty (30) calendar days or less duration, shall be filled whenever possible, by the senior qualified unassigned employe who is available . . ."

"ICE PLANT AND PLATFORM FORCES-REGULAR

"Rule 28.

(a) The maximum number of regular assignments consistent with the requirements of the service will be established."

"EXTRA BOARDS

"Rule 30

Extra boards regulated by the local supervisors and local chairmen will be maintained for Class 3 employes at each point."

Carrier asserts that neither the incumbent or the Claimant made their whereabouts known or were available for a call; that it is the prerogative of management to determine number of employes necessary to satisfy requirements of service on any particular day; mere existence of an assigned position does not obligate management to fill the position; there is no provision in the Collective Agreement prohibiting management from blanking positions at anytime and that Rule 6 must be read as a whole providing for bulletining procedure.

From evidence presented upon the property, it appears Carrier complied

with and was not in violation of Rule 28 (a). Although the Carrier abolished a total of 34 jobs as bulletined on August 19, 20, 25 and 28, the incumbents position was not abolished on the day in question, and was in existence and maintained by the Carrier to meet the requirements of service under Rule 28 (a). That the position was in existence is shown in the Carriers denial letter of the Organizations claim on September 6, 1962. It reads in part:

"Maximum crews employed... Management would have worked Mr. J. L. Martinez, but believe it unreasonable to fill a vacancy created by the assigned employe himself when there was no work for the man." (Emphasis ours.)

There is no basis for this Board to discuss Rule 30-"Extra Boards". The record does not show Claimant "assigned to" the Extra Board or that the extra board was not properly set up. The Employes base their claim on Rule 6 (a) 3, that Claimant was the senior qualified "unassigned employe" who was available and the Company was obligated to call him and fill the vacancy under Rule 6 (a) 3.

Carrier specifically contends that the iceman position in dispute and other Rule 1, Section (d) positions were excluded from the bulletin provisions by Rule 6 (a) 1:

"These rules will govern the hours of service and working conditions of all of the following class of employes, subject to the exceptions noted below:

(d) Other employes employed in and around offices, stations, storehouses, ice plants and platforms."

Rule 6 (a) 1 reads:

"1. Positions included in Rule 1, Section (d), will not be bulletined, but notices of new positions or vacancies will be posted on bulletin boards at the location involved. Employes desiring such positions must file their applications for some within three days and preference will be given to senior qualified employes..."

The Carrier asserts, therefore, the remaining provisions of Rule 6 (a), particularly the provisions of paragraph 2 and 3, have no bearing whatever on such position and are inapplicable. We agree.

We find that paragraph 6 (a) 3 is not mandatory, under the rule, to fill the vacancy in dispute. Rule 6 (a) Bulletining Positions, sets forth the manner in which positions will be filled to protect the seniority rights set forth in 6 (a) 3. The method is to be by notice, for the position in dispute, as outlined for iceman in 6 (a) 1: "Employes desiring such positions must file their application for the same within three days and preference will be given to senior qualified employes."

Carrier does not dispute that Claimant was the Senior qualified unassigned employe at the time the vacancy occurred on August 26, 1962. Under Rule 6 (a) 3, Claimant was not guaranteed that when the incumbent laid off, Carrier was mandatorily required to place the Claimant in the incumbents' position during his absence. Nor does it bear on the matter of whether or not

a position must be filled each and every day. (Award 6889) Rule 6 (a) 3 is clear in this respect that, "New positions or vacancies of thirty (30) calendar days or less duration, shall be filled, whenever possible, by the senior qualified unassigned employe who is available . . ." (Emphasis ours.)

In Award 6889, the Board held:

'. . . If Employes intended this rule to read that Carrier was directed to fill such a vacancy then the proper wording was not inserted in the rule, as the sentence now reads it relates exclusively to the bulletining and does not include a mandatory direction that the position shall be filled."

Award 12686 held:

""That guarantee runs personally to the incumbent of a position rather than impersonally to the job itself. That quite aside, there is nothing in the Agreement which makes mandatory the filling of a position when its regular occupant absents himself * * *'”

There being no provision in the Collective Bargaining Agreement, prohibiting management from blanking the position in question, we find no violation of the Agreement.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

Dated at Chicago, Illinois, this 30th day of June 1965.

LABOR MEMBER'S DISSENT TO AWARD 13706, DOCKET CL-14139

Award 13706 is totally in error in interpreting Rule 6 (a) 1 as the only way to fill a Class 3 position and 6 (a) 3 as a "permissive" rather than a "mandatory" rule inapplicable to vacancies in Class 3.

For clarity Rule 3, which sets out the classes referred to herein, reads as follows:

"Rule 3-SENIORITY CLASSES

Seniority classes shall be as follows:

Class 1. Employes as defined in Rule 1, except sections (c) and (d).

Class 2. Employes included in Rule 1, section (c).

Class 3. Employes included in Rule 1, section (d).”

We were here concerned with a Class 3 position; specifically, a vacancy of thirty (30) days or less duration which occurred in a Class 3, or Rule 1 (d), position. We were asked to determine the right of the Claimant, the senior qualified unassigned Class 3 employe, to either fill the vacancy or be paid in lieu thereof because Carrier failed to use him.

Rule 6 captioned "Bulletining Positions" has as its sole function the establishment of procedures for "filling" positions or vacancies. These procedures are clearly spelled out in the several paragraphs thereof and should have been reconciled and construed together. Paragraph (a) requires that:

"All new positions or vacancies shall be promptly bulletined on bulletin boards accessible to all employes affected, except as provided in Paragraph 1, 2, and 3 of this rule.

*

Paragraph 1 is shown in pertinent part in the Award. It will not be repeated here. Suffice it to say that it deals with the procedure for advertising or posting notices of new positions or vacancies of over thirty (30) days duration in the specific class (Class 3) here involved. It is a substitute method for bulletining Class 3 positions only.

Paragraph 2 reads:

"Positions or vacancies of thirty days or less duration; or positions established for special work, other than regular routine work, including positions in connection with loading seasonal perishable traffic, of ninety days or less duration, may be filled without bulletining."

and deals with filling "short" vacancies, without reference to "Class", and "special" positions of ninety (90) days or less duration. The sole purpose thereof, after all the language is considered, is contained in the last phrase stating that such positions "may be filled without bulletining." (Compare Award 6889).

Paragraph 3, contrary to the Carrier's arguments and the Referee's findings, deals specifically with the matter that was supposed to be under consideration by the Board. That is, filling vacancies of thirty (30) calendar days or less duration. Paragraph (a) previously discussed, by excepting paragraph 1, 2, and 3, stipulates that such vacancies, regardless of classification, will not be bulletined. Therefore, paragraph 3 treats and deals with the filling of vacancies of thirty (30) calendar days or less duration. It is not limited by its terms to only those normally required to be bulletined under paragraph (a) nor only those under paragraph (a) 1 or (a) 2, but rather to positions or vacancies of thirty (30) days or less duration in any class. It specifically states that such vacancies "shall be filled, whenever possible" and proceeds to spell out clearly by whom they shall be filled i.e., "by the senior qualified