FINDINGS.-The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds 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.
This Division of the Adjustment Roard has jurisdiction over the dispute involved herein.
The parties to said dispute were given due notice of bearing thereon.There is in evidence an agreement dated September 1, 1927, containing as a part thereof a wage schedule effective May 1, 1927. The parties have jointly certified to the following:
"H. R. Haines with a seniority date of February 10th, 1926 as Towerman, Los Angeles Division, under Telegraphers' Agreement, was promoted to position of Terminal Trainmaater at Indio, Los Angeles Division, several years ago. On or about June 1st, 1934, while serving as Terminal Trabimaster at Indio, be vacated the position on acconut of illness and H. W. Maxwell was appointed Acting Terminal Tralamaster at Indio vice Mr. Haines.
"On June 28th, 1934, Mr. Haines was used as an extra unassigned Towerman to fill a temporary vacancy at Naud Junction, Los Angeles Division. Mr. Hainess' seniority antedated that of any other extra unassigned Towerman on the Los Angeles Division Towermea's Seniority List. Effective September 14th, 1934, Mr. IIaines resumed service as Terminal Trainmaster at Indio."
H. R. Haines is carried on the Towermen's Official Seniority List of the Las Angeles Division with the` notation that he is on leave of absence under the provisions of Rule 23. Paragraph (d) thereof, involved in this dispute, is quoted:
Due to heat prostration, Mr. Haines discontinued work on the position of Terminal Trainmaster at Indio on Ally 16, 1934; he entered the hospital at Los Angeles and was advised by the Company physician in charge of the ease not to return to Indio particularly during summer months.
Following the vacation of the position, the carrier by official notice dated June 20, 1934, appointed Mr. II. W. Maxwell, Acting Terminal Trainmaater at Indio, vice Mr. H. R. Haines, find advised the Local Chairman for the Telegraphers by letter June 21, 1934 of this action, stating that under the provisions of Rule 23 (d). above quoted, that Mr. Haines was seemingly permitted to exercise his seniority as extra towerman. Mr. Haines presented himself for ex'ra work as towerman and was used in said service on June 28, 1934, to fill vacancy on position of Towerman, Naud Junction. He was similarly used at that point and at other points on various dates to and including September 2, 1934.
On or about September 4, 1934, Mr. Haines was removed from the list of available towermen of the Los Angeles Division, and following a few days leave of absence thereafter, was, effective September 14, 1934, appointed to the official position of Terminal Trammaster at Indio.
The employes contended that Mr. Haines had not relinquished his position as Terminal Trainmaster averring that statements which he had made during June indicated his intention to return to his position at Indio in September, and further that the appointment by the carrier of Mr. Maxwell as Acting Terminal Trainmaster substantiated their contention, and consequently he, Haines, not having been definitely severed from his official position had no rights to extra unassigned work as a towerman-such use under the circumstances being in violation of Rule 23 as well as being contrary to all past practice and precedent covering such action.
The carrier slated that Mr. Haines was not on leave of absence from position Of Terminal Trainmaster at Indio during the time he performed service as Towerman; instead, he vacated position of Terminal Trainmaster at Indio; his successor was officially and formally appointed; further that Mr. Haines did mot hold any right or title to the position by agreement or otherwise, especially after his successor was appointed, and that his use its a towerman was in accordance with the rights conferred upon him by Rule 21 (g).
H. R. Haines was relieved from his position as Terminal Trainmaster at Indio by official notice dated June 20, 1934, and thereafter was entitled to serve as a towerman in accordance with his seniority in the towerman class as covered by the provisions of the Telegraphers' Agreement.