PARTIES TO DISPUTE:
BROTHERHOOD OF RAILROAD SIGNALMEN OF AMERICA
THE BALTIMORE AND OHIO RAILROAD COMPANY

STATEMENT OF CLAIM: That J. D. Nethken be allowed straight time between the hours of 8:00 A. M. to 12:00 Noon and 12:30 P. M. to 4:30 P. M., March 6, 1944 to April 15, 1945. Also that he be paid at the rate of time and one-half between 4:30 P. M. and 12:00 Midnight for the above period.


JOINT STATEMENT OF FACTS: On or about January 24, 1944 Mr. J. D. Nethken, was working by regular assignment, as a signalman in the signal gang under the direction of signal Foreman owe with camp cars as headquarters, regular assigned working hours from 8:00 A. M. to 4:30 P. M.


Bulletin No. 4, dated January 18, 1944, was issued on the Baltimore east-end Seniority District advertising position of second trick maintainer at Lee Street Tower, Baltimore, Md., with assigned hours from 4:00 P. M. to 12:00 Midnight. Mr. Nethken was not an applicant but was assigned this position by Bulletin No. 6, dated March 6, 1944, under the provisions of Rule 48 of the then current agreement.


The Seniority roster on the Baltimore east-end Seniority District for 1945 shows 41 men with seniority in the Signalmen's class and Mr. Nethken ranks No. 32 in this class.


POSITION OF EMPLOYES: There is in existence an Agreement between the parties to this dispute dated August 1, 1939 which among other things provides the following:






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The Employes here contend the claimant held ownership to a position which he was required to relinquish in order to fill a vacancy at the direction of the Carrier, and the Employes contend that the claimant therefore is entitled to compensation based upon his ownership rights to the position from which he was so removed.


The Carrier has demonstrated here that to the best of its ability it fairly applied the provisions of Rule 48 (a). The Carrier cites Award No. 2635 in support of the propriety of this application of Rule 48 (a).


The Carrier has further demonstrated that the claimant found here voluntarily accepted the position assigned him in that he did not choose to return to his former position, although he had two opportunities to do so. The Carrier also demonstrated it had no reason to think otherwise since the first claim was not submitted until August 3, 1946, approximately seventeen months from the date the claimant was assigned the disputed position, and approximately four months after he vacated that position.


The Carrier requests the Division to find this claim as being one without merit and to deny it accordingly.




OPINION OF BOARD: Claimant Nethken was working as a Signalman in a signal gang with camp cars as headquarters, hours 8:00 A. M. to 4:30 P. M. The position of Signal Maintainer at Lee Street Tower, Baltimore, Maryland, hours 4:00 P. M. to Midnight, was bulletined and there were no applications received for the position. Accordingly, on March 6, 1944, claimant was permanently assigned to this position under the provisions of Rule 48 (a), as follows:



At the time of the assignment, claimant was No. 32 on the seniority list of 39. There were seven other employes in the same class junior in seniority to claimant. However, Rule 48 (a) does not require the carrier to assign the junior on the seniority list, but permits the carrier to designate the unior of its qualified men, and there is no proof in the record that any of hose men junior :n seniority to claimant were in fact qualified for the position.


The claim, contentions and facts in this case present the identical issues we have passed on in a companion case in Award No. 3798.


Inasmuch as the award in that case denied the claim, the same award must be entered in this case, and for the same reasons.




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:

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










ATTEST: H. A. Johnson
Secretary

Dated at Chicago, Illinois, this 26th day of February, 1948.