It is the position of the carrier that Rules 2, 3, 15 and 53(a) relied upon by petitioner are not relevant to the facts; that Jess Hinton was definitely and permanently released from the Company's service in capacity of section laborer on December 28, 1942, all within the rights of the carrier under provisions of Rule 1, and that claim for alleged time lost from January 4, 1943, consequently is without foundation of fact.

OPINION OF BOARD: The claimant entered the service of the carrier on October 19, 1942, as a section laborer. On December 28, 1942, he, with two other section laborers, was laid off because, as he says, of reduction of force. The carrier says that his service was terminated on that date because his work was unsatisfactory. In accordance with the provisions of Rule 1 he was considered a temporary employe on December 28, and it is conceded that the carrier then had the right to discharge him. If he was laid off because of force reduction, the claim must be sustained; for the record shows that a junior employe was used on his position after the claimant had complied with the provisions of Rule 15 in giving notice to the roadmaster of his desire to retain his seniority rights. The carrier's contention that the notice was not given as required by the rule, because it was sent by the claimant directly to the roadmaster instead of "through his foreman," cannot be sustained. The essence of the requirement was that his name and address should be filed in writing with the roadmaster and this was done.

The issue before this Board is, therefore, one of fact: Was the employment of the claimant terminated on December 28th? Or was he laid off on that date because of force reduction?

In support of its contention, the carrier claims that its records show that claimant's employment was terminated because of unsatisfactory service. On just what this record is based does not appear. As a matter of fact the only evidence indicating that he was discharged is a letter from his section foreman to Roadmaster Stevens, written December 27th, 1943, a year after the alleged discharge and after it was known that he was protesting the carrier's action in recalling to service a junior man ahead of him.

As against this we have the fact that he claims that nothing was ever said to him about his work being unsatisfactory, and he says that he never was told that he could not return to his ,job. Also he calls attention to the fact that he was laid off with two other men who were not discharged. The carrier says that this was a mere coincidence. $ut it certainly is a significant one. Furthermore he wrote a letter to the roadmaster on January 4, 1943, notifying him that he desired to preserve his seniority rights. No answer was made to this. If his employment had been terminated, was it not the natural thing to have told him so and to have let him know that he had no seniority right to protect? Then on February 6, 1943, Roadmaster Stevens wrote a letter to Mr. S. M. Keith, Local Chairman, in which there is no mention of the fact that claimant's employment had been terminated because of unsatisfactory service. The reason given was that he was doing emergency work which had been completed. We think that every inference supports the contention of the claimant that his employment was not terminated but rather that he and two other men were laid off at the same time in a reduction of force.

The action of the carrier in failing to recall the claimant to work on January 4, 1943, when the force was increased and calling at that time a section laborer junior to him was a violation of Rule 53 (a) of the Agreement.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

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 the carrier violated the agreement.

AWARD