LGH:iha"

It will be seen from the foregoing evidence that the Employes are now attempting to secure by a claim what they have not been able to obtain through collective bargaining. By their request they admit that they have no rule to cover what they are claiming in this docket. This claim amounts to a request for the Third Division to write the rule.

Claim is without foundation and must be denied.

OPINION OF BOARD: Claimant C. H. Cruse, was assigned to a Machine Operator position at Pueblo, Colorado, pending a subsequent award of the position by bulletin, and was assigned an outfit car. Carrier, on May 9, 1961, was advised that the successful applicant for the position would assume the assignment on May 10. At this time a vacancy in the position of Machine Operator, which was under bulletin, occurred at Glenwood Springs, Colorado. It is contended by the Claimant that he was directed by the Carrier to go to Glenwood Springs. Claimant Cruse completed his work at Pueblo at 3:30 P. M. on May 9 and was notified of the vacancy at Glenwood Springs. He then called Mr. Turner, the Supervisor of Work Equipment and talked over the telephone with Mr. Phelan, Engineering Assistant in charge of bulletins and assignments of Road Equipment Operators. He was told by him that the work would be on a work train at Glenwood Springs and that he was to be there at 7:30 A. M., May 10. As there was no passenger service to Glenwood Springs that would permit his arrival at 7:30 A. M., he was required to use his own automobile for travel between Pueblo and Glenwood Springs. Claimant arrived at Glenwood Springs before his outfit car. His expenses there were paid until his outfit car arrived. Claimant contends that this assignment by Carrier represented a recognition by Carrier of Claimant's seniority rights, Claimant being the senior operator without assignment; that this was not an exercise of seniority by the Claimant.

Claimant relies on Rule 15 (c) of the Agreement:

"(c) Employes who are required by the direction of the Carrier to leave the home station will be allowed actual time for traveling or waiting during the regular working hours. All hours worked will be paid for in accordance with the practice at home station. Travel or

waiting time during the recognized overtime hours at home station will be paid for at the pro rata rate."

In opposition to Claimant's position Carrier insists that Claimant in accepting the assignment at Glenwood Springs, was in the exercise of his seniority rights and cites the following rules of the Agreement in support of its position.

Rule 15 (e):

"(e) Employes will not be allowed time while traveling in the exercise of seniority rights, or between their homes and designated assembling points, or for other personal reasons."

Rule 3 (i):

"(1) Except as provided in Section (2), an employe displaced or cut off in reduction of force must indicate within ten days the position to which he intends to exercise displacement rights and must exercise seniority within ten days from date of displacement unless extension of time is arranged in writing with Division Engineer.

(2) Employes who do not indicate within ten days from date of displacement or cut off, position on which they desire to exercise displacement rights will be considered as furloughed employes subject to return to service under the provisions of either Rule 7 or Rule 9."

Evidence that Claimant has offered to support the contention that he was directed by Carrier to go to Glenwood Springs is rather sketchy at best. Claimant was, undoubtedly, advised of the Glenwood Springs vacancy. Claimant ,could have elected under Rule 3 (1) to not exercise his displacement rights at the time here involved. It is apparent from the record that he did, of his own volition, elect to exercise his seniority right and take the temporary position. This is evident from the fact that Claimant called Mr. Turner's office; Mr. Phelan didn't call him.

The question submitted for our determination is whether the assignment involved was accepted by the Claimant in the exercise of his seniority right or whether he was directed to go to Glenwood Springs in recognition of Claimant's seniority right, entitling him to an allowance for travel time under Rule 15 (b) of the Agreement.

The distinction between "recognition of an employe's seniority right by a Carrier" in directing a working force and "the exercise of seniority rights by an employe" is whether or not an employe accepts an assignment by Carrier on his own volition or by his own choice or whether he does not. See Award 5518-Whiting; Award 11491-Hall.

We must conclude that Claimant in the present case was entitled under the Rules to make a choice as to whether to accept the vacancy at Glenwood Springs or not, and that the acceptance thereof by Claimant, was an exercise of his seniority rights under Rule 15 (e) of the Agreement.

This case is distinguishable from Award 10988-Hall, as under the rule prevailing on that property, the employe acted under compulsion, not on his

That the Agreement has not been violated.

AWARD