CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC
RAILROAD COMPANY
dispatcher position awarded them by bulletin by performing compensated service on such position. Thereafter they can only relinquish such position as contemplated by Schedule Rule 4(f). Under Rule 5(g) a train dispatcher awarded a bulletined position can only decline to accept such position before he has performed compensated service on that position, thereafter he would relinquish such position. The word "accept" means to take or receive what is offered; the word "relinquish" means to withdraw from, to leave, to quit, to forsake or abandon. At Sioux City Dispatcher Mayer accepted or took the train dispatcher position that was offered to him. He did not accept or take the train dispatcher position at LaCrosse that was offered to him, therefore, he could not possibly relinquish that position as contemplated by Schedule Rule 4(f); instead he declined to accept the train dispatcher position at LaCrosse on April 19, 1954, thereby assuming the status of an extra train dispatcher. Had Dispatcher Mayer performed service on either the position at Emery or the position at Worthing during the period he was considered as a regularly assigned train dispatcher, then and only then could he be considered as having volunarily relinquished his position as train dispatcher and asserted seniority in other service.
Briefly, it is the position of the carrier that inasmuch as Dispatcher Mayer had not accepted the assignment by performing service as train dispatcher at LaCrosse, he could not relinquish it. Therefore, the last paragraph of Rule 4(f) would not be applicable and Dispatcher Mayer would not have forfeited his seniority as a train dispatcher.
OPINION OF BOARD: This matter comes before us as a joint submission of the parties. The Organization claims that E. D. Mayer, while regularly assigned as Train Dispatcher, forfeited his seniority as a Dispatcher by reason of exercising seniority rights in other service. Rule 4(f) of the Agreement provides, among other things, that,
E. D. Mayer, whose seniority date was October 8, 1948, was awarded a regular Train Dispatcher's assignment in Carrier's Sioux City office, March 15, 1954 and began service there March 23, 1954. On March 31, 1954, a permanent vacancy on 2nd trick relief Train Dispatcher position at LaCrosse, Wisconsin, in the same seniority district, was bulletined and Mayer, the senior applicant, was assigned by bulletin dated April 15, 1954.
On April 1, 1954, a temporary position of Agent at Emery, S. D., under the Telegraphers' Agreement, was bulletined and Mayer was assigned to this position by bulletin dated April 15, 1954.
The record shows that Mayer was advised by the officers of the Train Dispatchers' Organization that if he accepted the position of Agent at Emery he would forfeit his seniority under this Agreement. His attention was called to the last paragraph of Rule 4 (f), quoted above.
The Carrier contends that Mayer is protected by Rule 5(g), which provides that,
Since Mayer qualified for two positions at the same time he had a choice of accepting either the 2nd trick Train Dispatcher position at LaCrosse, 7766-12 754
Wisconsin and thus retaining his seniority under this agreement, or asserting his right to the Agent's position at Emery, S. D., under the Telegraphers' Agreement, and thereby forfeiting his seniority under the Train Dispatchers' Agreement. Rule 5 governs the filling of vacancies. It does not determine who gains or loses seniority, as does Rule 4. And the last paragraph of Rule 4 (f), which deals specifically with "Failure to Bid and Forfeiture;" makes plain that a "train dispatcher who voluntarily relinquishes his position as train dispatcher and asserts seniority in other service shall forfeit his seniority as train dispatcher." (Emphasis added.)
We must agree with the Organization that this language of 4 (f) is controlling in Mayer's case. If not, it has no meaning. Mayer was not required or forced to give up any position under this Agreement. He voluntarily surrendered his claim to both his former position at Sioux City sad the one awarded him at LaCrosse. He did this with the purpose and intent of asserting seniority in other service. Regardless of the specific dates involved, there is no question about Mayer's intentions. Therefore, we have no choice but to sustain the Organization's claim.
FINDINGS: The Third Division of the Adjustment Board, 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 Train Dispatcher E. D. Mayer forfeited his seniority as Train Dispatcher under the provisions of Rule 4 (f) of the parties' Agreement made effective September 16, 1950.