Mr. Stephens occupied Position 39 his mileage as the incumbent on that assignment was 296 miles per month, while the incumbent on Position 118 averaged 95;3 miles per month; therefore, inasmuch as our automobile allowances are based on mileage driven for an assignment, the automobile allowance is a part of that assignment, and is not remuneration or compensation extended to an employe but is merely established in order to defray the operational expenses required of an employe when his automobile is used in the services of this Bureau on the assignment the employe occupies.

There is also one other important phase of this claim that should be brought to the attention of your Honorable Board and that is we do not have an agreement of any kind with the Employes regarding automobile allowances. In other words, when we establish an allowance for a certain position it is not by agreement with the Organization because no such agreement exists, consequently, as the basis for this claim deals exclusively with the difference between automobile allowances there can be no violation of any rule because no such rule is in effect on this properly and in the light of this we respectfully request that your Honorable Board in its deliberations of this case will find that the claim is without merit and we therefore request that it be declined.

All data contained herein has been presented to the Employes.

(Exhibits not reproduced).

OPINION OF BOARD: The applicable parts of Rule 13 read as follows:

"When a position is discontinued and reinstated within sixty (60) days, the last regular assigned incumbent, if retaining seniority rights, will upon application be returned to the position without regard to seniority * * * *.

When an employe returns to a reinstated position under this Rule, other employes who are disturbed account of this temporary reduction of force may return to their former positions in the same manner." (Emphasis supplied).

The emphasized portions of the rule clearly indicate that it permits but does not require employes to return to their former positions under the circumstances specified. Thus the carrier violated that rule when it required claimant to return to position No. 39 from Position No. 118 against his wishes and he should be restored to position No. 118.

The claim asks reimbursement for the difference in the monthly automobile allowances for the occupants of the two positions. Such allowances are not a matter of agreement. More important however is the fact that claimant in notifying his supervisor of his desire to remain on position No. 118 stated in writing, "But I am willing to work on my old position, until definite interpretation of Rule No, 13 is determined." Under such circumstances it is inappropriate to award a penalty for the violation.

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 Carrier and Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

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

The Agreement was violated.

AWARD