STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Missouri-Illinois Railroad that:
(1) The Carrier violated the agreement In effect between the parties to this dispute when it refused to pay W. C. Barton eight (8) hours at pro rata rate for time lost checking bulletined position Ste. Genevieve, Missouri, May 4, 1949;
(2) That Agent W. C. Barton, Ste. Genevieve, Missouri, now be paid a day's pay of eight (8) hours' compensation account transferring accounts at Ste. Genevieve, Missouri, May 4, 1949, in line with the agreement.
EMPLOYES' STATEMENT OF FACTS: Rule 19 (b) of the prevailing agreement between the parties provideo:
"Regular assigned employes transferred by order of the company, employee transferred by order of the company to accept a bulletined position, employes displaced in force reduction who may be obliged to lose time incident to being checked out or in of position from and to which transferred, and employes displaced In force reductions who may be obliged to lose time incident to transfer from one position to another account Hours of Service Act, will be paid a maximum of eight hours each calendar day for time lost in trans· ferring from one station or position to another station or position, except they will not be paid for such time as they may lose of their own accord."
Claimant Barton, while regularly assigned as agent-yardmaster at Salem, Illinois, made application for bulletined vacancy existing at Ste. Genevieve, Missouri. Mr. Barton was the senior applicant and this resulted in the following notice being issued by the Carrier:
Effective at once, Mr. W. C. Barton is appointed as Agent Ste. Genevieve, Missouri, vice C. B. Acuff, retired.
employe and it is not an order in the meaning of Rule 9 (b). Furthermore, it Is not entirely at the convenience of the Carrier; it must be arranged within ten days after receipt of applications from Local Chairman as prescribed in Rule 14 (a). Certainly there can be no reasonable basis for saying that these arrangements for transfer of station accounts constitute an order of the company for the agent to transfer from one station to another when the Carrier is making those arrangements only because it is required to do so as a result of the employe's voluntary action in making the move.
It is the position of the Carrier that this claim is not supported by the Agreement and has no merit on a basis of equity. We have shown how the Carrier is obliged to incur certain costs to transfer stations from one employe to another in permitting them to secure the advantages of their seniority. To us it is a strange theory of Agreement application to undertake to also impose upon the Carrier a penalty in the form of duplicate payment for the same day's work because it grants the employe the privilege of bettering his condition. Penalties are usually assessed for denials of privileges and rights or the imposition of undesirable conditions-not for giving an employe a better job. Seniority belongs to the employe; it is of no particular concern to the Carrier. The generally accepted rule is that an employe will exercise his seniority rights without cost to the Carrier. There is nothing in the Agreement involved in this dispute that requires the Carrier to assume any loss encountered by the claimant as a result of his voluntary exercise of seniority rights.
OPINION OF BOARD: Claimant bid in and was appointed to the position of Agent at Ste. Genevieve, Missouri. Carrier arranged for its auditors to check him out of his former position at Salem, Illinois, on May 2, 1949, which was done. Claimant advised that he would be ready for service at Ste. Genevieve on May 4, 1949, he using May 3, 1949, for his own purposes Claimant was not paid for May 4, 1949, and this claim is for that loss of pay.
The claim is clearly valid under this rule. The contention of the Carrier that claimant's transfer to Ste Genevieve was voluntary and not by order of the company has no merit. While the transfer may have resulted from a voluntary bid for the new position, it was done in the exercise of a contract right which became effective only upon the assignment being made by the Carrier. Such an assignment to the position is "by order of the company" within the meaning of Rule 19 (b.
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 respec tively Carrier and Employes within the meaning of the Railway Labor Act, ae approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dis pute involved herein; and