The respondent carrier reserves the right, if and when it is furnished with ex parts petition filed by the petitioner in this case, which it has not seen, to make such further answer and defense as it may deem necessary and proper in relation to all allegations and claims as may have been advanced by the petitioner in such petition and which have not been answered in this, its initial answer.
Data in support of the Carrier's position have been presented to the Employes' representative.
OPINION OF BOARD: After the captioned case was docketed with the Board, Petitioner withdrew its opposition to the November 9, 1925, seniority date assigned Andy Dragoin, but remains to argue other alleged violative action of the Carrier which is the subject of claims 2, 3, 4 and 5.
Despite what appears to us to be a dismissal of claims 1 and 6 without prejudice to the rules of Agreement, Petitioner speaks of same as being a "conditional" elimination of that part of the,claim which asserts a violation of Article 12 (d) of the Agreement when Dragoin was given his former seniority date of November 9, 1925. In this way the Employes apparently hope to keep a foot in the door to deprive Dragoin of displacement rights to a position occupied by him before being dismissed from the service, and to which his hiring date at one time attached, although now conceding the propriety of that date having been restored to im.
Petitioner's dilemma rests largely in a purported "agreement" reached between a Carrier officer and the Local Chairman. In that connection the record shows that when Dragoin's reinstatement was discussed on the property, the Local Chairman was agreeable that Dragoin's seniority should be restored but wanted him restricted in the exercise of same. It is axiomatic that before there can be agreement there must be an offer and an acceptance in terms of that offer. So, we say it is self-evident that there was no "agreement" when the record shows that Dragoin was restored to his former position contrary to what had been discussed between a Carrier officer and the Local Chairman. The Carrier should not have injected into this record the contention that an "agreement" had been entered into, when, by all known standards, none can be said to exist.
On the other hand, Petitioner, irrespective of the reason, has effectively eliminated any dispute over Dragoin's seniority date by its change of position, and, in our opinion, has thereby destroyed any validity that there may have been in the balance of its claim.
Seniority is one indicia of right to a position under the Agreement. When ode has been removed from a position by Carrier imposed discipline and that decision becomes final, there has been a break in seniority which divests the employe of any further claim to his former position. But, under usual rules and practices governing in matters of discipline, reinstatement with seniority unimpaired again vests in the one who has been removed a right to be returned to his former position.
Therefore, Petitioner's withdrawal of Claim (1) removed from Board consideration the basic issue, and its contention that one or more of the incidental issues remained is without merit, now that Carrier imposed discipline has been set aside and Dragoin's seniority date no longer is in dispute.
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: 6950-26 6(j2