"When excepted or official positions are filled by other than employes covered by these rules, no senority rights shall be established by such employment."

A Memorandum of Agreement between the parties dated March 28, 1927, (hereinafter referred to as the Memorandum Agreement), provided that:

"The seniority rosters for clerks and freight handlers as of July 1926 shall be considered as correct."

This Memorandum Agreement also contained the provision now carried as a Note to Rule 11 (h) set forth above.

Air. Pfeiffer entered the service of the Carrier as a clerk on the Decatur Division on October 6, 1906. On February 1, 1916, he was transferred to the position of Secretary in the Engineering Department in the General Offices at St. Louis. Oil October 31, 1917, he was granted a leave of several weeks to take a trip to Florida. By the time of his return, new construction work had been began at Glauite City and lie was sent there temporarily with one or two others from the Engineering Office, being still considered according to the Carrier, as a part of the secretarial force of the Chief Engineer. As a result of his vacation trip to Florida lie worked for only five days in November at Granite City, bill worked thereafter the full thirty days in December and the first eight days in January 1918, whereupon he was assigned to the position of Secretary to the Superintendent of tile Detroit Division at Montpelier. On June 1, 1919, he became Secretary to the General Superintendent at St. Louis and held two other similar positions in the General Ofce until September 30, 1932, when the position he held wits abolished and he was permitted to displace on the Decatur Division, this displacement being the cause of the claim in this case.

The employee have based their claim, both in their original submission and in their reply to the Carrier's submission, on the proposition that Pfeiffer left the service of the Carrier in November 1917 and thereafter re-entered the service in excepted positions, which would give him no seniority rights on the Decatur Division. The employes apparently came to this conclusion as a result of examining Pfeiffer's service record, which as stated above listed only five days of work in November 1917. They apparently assumed that the gap was occasioned by his having left the service. But the facts and documents submitted by the Carrier seem clearly to establish that the gap was due to a vacation as described above and that Pfeiffer never left the Carrier's employ but was in continuous service from October 6, 1906. Both in their submission and in their reply to the Carrier's submission the employes took tile position that if Pfeiffer had in fact been in continuous service from October 6, 1906, his seniority status on the Decatur Division and his right of displacement would not be questioned. We think the facts show continuous service on Pfeiffer's part, which disposes of the contention relied upon by the employes in their presentation of the case to this Board.

But rights should not be foreclosed by errors in pleading. We are not a Court of Law and are not bound by technicalities. If a violation of an Agreement is clearly established by the record we ought not to deny the claim merely because it was presented upon an erroneous theory, provided always that the Carrier has not been prejudiced by the manner of presentation and has had an opportunity to meet the issues which are really controlling. In the present case, although the principle issue and the one upon which the employes based the theory of their claim was whether or not Pfeiffer had been in continuous service, two other questions were touched upon by the petitioners which had a distinct bearing oil the claim and which were sufficiently noticed and discussed by the Carrier to justify our considering them.

Tile first of these questions was whether or not Pfeiffer brought himself under Role 11 (s) above. That rule was written into the Agreement on April 16, 7920, and it provided that employes "now filling" excepted positions would retain their seniority rights in tile district from which promoted. Apparently, the positions which Pfeiffer held after leaving the Decatur Division oil February 1, 1970, and until the adoption of this rule in 1920 were not excepted positions. But by other changes in the Agreement which were effected at the same time that Rule 11 (s) ivas adopted, the position which Pfeiffer held at that time was established as an excepted position and it was similar to the positions which he had held before and subsequently. When Pfeiffer entered the service

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in 1300 in a clerical position the Clerks' Agreement had not then been negotiated and did not become effective until some years later. We have then this situation. A man enters tile service of the Carrier as a clerk at a time when the Clerks' Agreement is not in force. Later the Agreement covers the kind of position which he filled. Ile then transfers to another position in a General Othce, which is not at that time covered and excepted, but which a little later by it change in the Agreement is covered and excepted, and at the time of this change the Agreement is also made to provide that employes "now filling" excepted positions shall retain their seniority rights. Under these ciremnstances did Pfeiffer retain his seniority rights? In view of the somewhat obscure meaning of the rule and in the absence of the submission of any precedent to guide us, we think the position of the parties in this particular case should be controlling, with the understanding that it will not be a controlling precedent in any subsequent cases in which the issue may be more fully presented. In this case the employes stated in their subnd.sion that: "Secretaries to Division Superintendents were placed under the individual exceptions to the Schedule rules in the Agreement for Clerks effective April 16, 1920," and that under Rule ll (s), "had Mr. Pfeiffer been in continuous service his rights trader the Agreement would have remained on the Decatur Division." For want of better evidence, we are constrained to accept the position thus taken by the employes.

The second question to be considered is whether since Pfeiffer's uame was not on the seniority roster of tile Decatur Division in July 1926, he was barred under tile terms of the Memorandum Agreement from any right thereafter to be included in the roster. Here again tile mounting of the rule is not altogether clear. The Memorandum Agreement states that the roster of July 1926 "shall be considered as correct" This might mean that an employe who did not appear on the roster could not thereafter appear on it or it might mean that if an employe's name did appear on the roster his seniority date there shown would be taken as correct. The latter seems to have been the hitcntion, because the Memorandum Agreement went on to provide hi a clause now appearing as the "Note" to Rule 11 (h), that employes' protests within the thirty day period after the positing of a particular roster "are not to be considered in cases of an employe whose name and seniority (late appears on previous rosters except where it can be shown that a clerical error has been made." The implication of this elnase is that protests would be proper if the employe's name did not appear at all. The object of the Memorandum Agreeuient seems, therefore, to have been, in the language of the Carrier's reply, "to eliminate complaints from employes with respect to their proper seniority date as published on the roster," and that the Memorandum Agreement "does not in ally way restrict the right of employes whose names and seniority dates have not appeared on a previous roster to return to the division or roster from which promoted and exercise their seniority rights, and has never been so understood by either party." There is no denial of this statement in the record and in the absence of any other evidence we take it to be a correct statement of what was intended.

The record contains numerous instances of employes whose names were added after the Memorandum Agreement to the rosters under circumstances similar to those in the case before us. Save in a few instances these additions were all effected after an exchange of letters between tile General Chairman and the Management. Sometimes the additions were initiated or suggested by the Management and sometimes by the General Chairman. The tenor of the correspondence is uniform. The initiating party says to the other, "here is :t man who ought to be included because his service record is such and such, and we assume yon will have no objection." 'lie other party then verifies tile facts and acquiesces in tile addition to the roster.

Two interpretations can be placed on this correspondence. It can be said to express an understanding that no addition to the roster could be made except by nndual agreement, and that either party for any reason, whether nrldirnrily or not, could block the addition by merely invoking the Memoracr deal Agreciueut. This interpretation was urged on behalf of the employes at the l:enring before the Referee. On the other hand, the explanation of the cmiespowlence might be this, that both sides reeognired tile right of an emi;jove to go on the roster when he brought himself under Rule 11 (s) ; that tile purpose of the correspondence was simply to make certain that the facts were cv>rroct; and that neither party understood the purpose of the Mexnoran-

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dam Agreement to be the giving of an absolute veto to either party where the employe wets in fact covered by Rule il (s). This seems to have been the understanding of the employes in this case, for in their reply to the Carrier's submission they state that:

"The question of Mr. Pfeiffer not being entitled to the date of October 6, 19LNi, because his name had never appeared on the Decatur Division roster is not involved in the dispute as submitted by the employes. Our claim is not based upon that fact."

The sole question which they present is whether Pfeiffer's service was continuous. If it was, ]its right to appear on the roster would have been clear and, so far as we can ascertain the understanding of the parties in this case, and without foreclosing further consideration in some other case, it seems to have been established that neither party would deny the right where the facts brought the employe under Rule 11 (a), which contains no qualifications or exceptions.

This conclusion is strengthened by the last sentence of Rule 11 (h), which provides that upon presentation of proof of error by an employe or his representative within thirty days after the posting of the roster "such error will be corrected." This seems to imply a right on the part of the employes which cannot arbitrarily be denied merely by the withholding of consent, subject, however, to the restriction that the protest must be made within the thirty day period. If it is not rna<le then, it may be made within thirty days af,er the posting of the next roster.

This brings us to a final consideration. Pfeiffer sought to exercise his seniority on tile Decatur Division in October 1932. Correspondence ensued between the General Chairman mid the Carrier, the gist of which was that the General Chairman wanted a statement of Pfeiffer's complete service record in order to "verify" his claim, but the Carrier contented itself by meroly staling that Pfeiffer had been continuously employed since October 6, 1906. During the course of this correspondence, and in November 1932, before the Carrier bad submitted Pfeiffer's service record to the General Chairman, Pfeiffer was permitted to exercise his seniority right and to displace a junior employe. Some time in December 1932, or perhaps a little later (the exact date does not appear in the record), the General Chairman died and was succeeded try General Chairman Rogers, who took up the case again in the spring of 1934, developed the contention that Pfeiffer's service was not continuous, and ultimately presented the case to this Board. The record indicates that shortly before the previous General Chairman died Pfeiffer's service record had been submitted by the Carrier.

The July 1932 roster did not contain Pfeiffer's name. The thirty day period for protests under Rule 11 (h) had expired. It is not (,tear from the record whether this thirty clay restriction wits applicable only to employes whose names appeared on the roster and who wished to make a correction ill the seniority date, or whether it was meant to apply also to employes whose names did not appear at all but who wished to be included. But so far as the practice call be ascertained from the record, the restriction seems to have been applied to both types of employees alike. Thus, in the case of one employee (Buchanan) the General Chairman wrote the Superintendent oil November 18, 1927, that through au oversight his name had never appeared on any roster and, "therefore, would suggest his name be placed nn the next roster issued." Ill in case of another employo (Michel) whose name had not appeared on ally loser, the General Chairman asked that the name be included and the Carrier, after satisfying itself as to the facts, instructed the Superintendent oil February 22, 1934, to make the inclusion "when issuing the next seniority roster." This pr:tetice wits to accord with what seems to have been the purpose of the Thirty day restriction. The purpose, as we understand it, was to create :x deadline, after which the roster would stand without change until the next semi-amtual roster appeared, thus giving the employes on the Division am authoritative statement of their rights `or the time being Upon which they Could rely and make their plans. The addition of a new name lifter the deadline wont(] have just tile same effect upon the other empioyes as tile alteratlou of tho seniority date of an employe already on the roster.

Upon this ch=w of the case, and in the absence of any oll:er eviderue. we think the Carrier's action in arbitrarily adding Pfeiffer's noun(, to the roster

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between periods and permitting him to displace, was improper. Pfeiffer's application was made some time in October 1932. The facts as we have found them, in the light of the practices of the parties and their apparent understanding of the rules including the Memorandum Agreement, established Pfeiffer's right to a seniority status on the Decatur Division as of October 6, 1906. But that being so, he should have been added to the January 1933 roster and have been permitted to displace thereafter instead of in the middle of the period preceding the posting of the January roster. Under Rule 11 (h) Pfciffer would have had the right to appear on the January roster, his request having been made prior to its posting, but he had no right to displace before his name was duly and properly added to the roster.

The question then remains as to the damage done to the rights of the employes by permitting Pfeiffer to displace in November instead of in January. At this point the record becomes complicated. The Carrier asserted in its reply to the petitioner's supplemental statement that Pfeiffer did not displace Sencenbaugh as stated in the employes' submission, but displaced Sbeehan, a clerk, on November 23, 1932. Sheehan thereupon displaced a timekeeper and served in the timekeeper's position for ninety-one days. But the timekeeper's position was then abolished, whereupon Sheehan displaced a junior clerk, served in that position for sixty-seven days and then quit the service (June 4, 1933) and has not returned since. Thus no claim can be made on behalf of Sheehan unless he can be located and the employes wish to represent him. The loss to the timekeeper was a minor one since the job was very soon abolished. And the junior clerk was not displaced by Sheehan until March 29, 1933, long after the posting of the January roster, on which Pfeiffer had a right to be included. If Pfeiffer had been included on the January roster he would presumably have displaced Sheehan, who would have displaced the timekeeper and later the junior clerk, so that the latter would have suffered nothing. The timekeeper's loss thro»gh his premature displacement amounted to a little over a month from the time Sheehan displaced him to the posting of the January roster, when presumably he would have been displaced had Pfeiffer then exercised his rights.

Whether the employes wish to submit a claim on behalf of the timekeeper for this short period and possibly a claim on behalf of Sheehan, we do not know. Their whole case is predicated upon the proposition that Pfeiffer's service was not continuous and that he, therefore, never bad any rights whatever on the Decatur Division. That proposition has fallen and with it the petitioner's case. Possibly because of the ground upon which the employes rested their case they did not think it important to question the Carrier's displacement statement and the allegation that it was Sbeehan who was displaced and not Sencentaugh. But if the employes wish now to claim an adjustment because of the improper exercise of Pfeiffer's seniority rights in November, we think they are entitled to do so. Pfeiffer had no right to appear on the roster or to displace other employes until January, and when the Carrier permitted him to displace in November, other employes were injured and are entitled to redress. We do not think their rights should be foreclosed by technical defects in the pleadings.

AWARD