The Company affirms that all data submitted herewith in support of its position have heretofore been presented in substance to the employe or his representative and made a part of the question in dispute.

(Exhibits not reproduced.)

OPINION OF BOARD: On March 16, 1954, the Official Position of Assistant to Superintendent, Pennsylvania Terminal District, was discontinued and the incumbent (Flora) was permitted to return to his former position of District Storekeeper on the Pennsylvania Terminal roster in place of L. R. Walker. The latter was permitted to return to his former position in the Washington, D. C. District in place of the Claimant. The latter was advised that he could displace on the Washington roster or transfer to the position of Storekeeper in the Baltimore District, which was vacant. He chose the latter. The Organization asserts that the Agreement was violated when Claimant (Mazyck) was removed from his position in the Washington District.

The Carrier contends that Rule 19, current Agreement, is controlling. It provides:

"An employe returning from (1) leave of absence (2) vacation (3) temporary assignment (4) official position (5) appointive position may return to former position providing it has not been abolished or senior employe has not exercised displacement rights thereon or may, upon return or within 5 days thereafter, exercise seniority rights on any position bulletined during such absence. In the event employe's former position has been abolished or senior employe has exercised displacement rights thereon, the returning employe will be governed by the provisions of Rule 20 and will have the privilege of exercising seniority rights over junior employes, if such rights are exercised within 10 days after his return. Employes displaced by his return will be affected in the same manner."

The record shows that effective June 23, 1952, Flora was promoted from District Storekeeper, Pennsylvania Terminal District to Assistant to Superintendent. Walker was promoted from Storekeeper. Washington District to succeed Flora and Claimant was promoted to succeed Walker. When Flora's position of Assistant to Superintendent was abolished each of these employes was permitted under Rule 19 to return to his former position.

The Organization contends that this was not permissible under the controlling rules because of a Memorandum Agreement entered into on January 1, 1953, which was incorporated into the current Agreement as Rule 27 thereof. It states in part:

"An employe will not retain and accumulate seniority on more than two rosters. If transferred to a third roster, he shall designate in writing to his new supervising officer, copy to Local Chairman, at time of transfer on which one of the former rosters seniority date shall be retained."

The Memorandum Agreement of January 1, 1953, required employes holding seniority on more than two rosters to designate before July 1, 1953, on which two rosters they desired to retain seniority. Walker had seniority rights at Pittsburgh, Washington and Pennsylvania Terminal. He elected in writing to retain seniority rights at Pennsylvania Terminal (where he was employed) and Pittsburgh. He thereby gave up his seniority rights in Washington and the Organization contends that he thereby gave up any and all rights to return to his former position in Washington. Upon the return of Walker to the Storekeeper position in the Washington District he was given a seniority date of March 16, 1954, the date of his return. He thereupon selected Pittsburgh as the second point at which he desired to retain seniority and relinquished his seniority at Pennsylvania Terminal.

It appears clear to us that Claimant's replacement by Walker was not a displacement under seniority rules. The positions were not subject to the promotion, assignment and displacement (PAD) rules. In filling such positions, the arrier is at liberty to select the best qualified employe. After his selecion, all other applicable Agreement rules apply to him. The replacement. of Claimant was pursuant to Rule 19 which permitted Walker, the occupant of an appointive position to return to his former position. This could be done irrespective of seniority under Rule 19 although he would be required to take a new seniority date and be governed by it when seniority dates became controlling in the exercise of his rights under the Agreement. He was required to again designate in writing the point other than Washington where he desired to retain seniority. This he did. It will be noted that Rule 27 contemplates that employes holding seniority on two rosters might be transferred to a third and provides how he shall relinquish seniority on one of the two seniority districts where he had previously retained seniority.

It is the contention of the Organization that an employe has no other rights than those acquired by seniority. This is not an accurate statement. An employe has such rights as the Collective Agreement gives him. Seniority rights may be expressly waived by agreement rules at it was on these PAD positions. Rule 19 is a special rule which prevails in such a situation as we have involved here. Walker has the right under Rule 19 to return to his former position in the Washington District and, having relinquished his seniority rights in that district, he must take a new seniority date which fixes his rights in that district when seniority controls. Since neither of the two exceptions contained in Rule 19 have any application here, the Carrier's actions were in compliance with 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 this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement was not violated.

AWARD