(Brotherhood of Railway, Airline and Steamship
 ( Clerks, Freight Handlers, Express and
 ( Station Employes
 PARTIES TO DISPUTE:
 (Chicago, Milwaukee, St. Paul and Pacific Railroad
 ( Company





OPINION OF BOARD: The Claimant became the regular assigned occupant
 of Road Caller Position 09590 as of May 8, 1972.
 Prior to May 8, 1972 the Claimant had requested to work a temporary
 vacancy occurring on Position 09470 -- Assistant Chief Clerk. The
 request was granted and he was assigned to work Position 09470
 effective may 8, 1972: he was awarded the temporary vacancy on
 Position 09470 by bulletin on May 15, 1972. On May 16, 1972 the
 Carrier removed the Claimant from Position 09470 and required him to
 work the Road Caller Position 09590 on the dates of the claim. The
 Claimant worked Position 09590 under protest.

 The Carrier contends that the claim presented to its Vice President-Labor Relations was not the same claim filed with the Assistant Superintendent and appealed to and denied by its Superintendent and is thus barred under R Carrier's perception in this regard is a technical one which we must reject. The Carrier's position was not prejudiced in any way in the processing of this claim. The Claimant's time slips, which are the basis of this claim, state: "CLAIM PENALTY TIME -- WORKING POS. 09590 UNDER PROTEST -- FORCED OFF POS. 09470 BY THE CARRIER". The claim presented to the Vice President-Labor Relations and now before this Board is based on the Carrier's requiring the Claimant to work Road Caller Pas. No. 09590, under protest; and the Claimant seeks redress for the alleged Agreement violation at the penalty rate for the position he was removed from for the dates in question.


Concerning the merits of the case, the pertinent rules involved in this dispute are quoted below:

        "RULE 9 - BULLETINED POSITIONS


          (f) Bulletined positions filled temporarily pending an assignment, shall be filled by the senior qualified employe requesting the position.


          (g) New positions or vacancies of thirty (30) days or less duration shall be considered as temporary and may be filled by an employe without bulletining; if filled, the senior qualified employe requesting same will be assigned thereto.


          (h) When an employe is assigned to a temporary vacancy the position formerly held will be considered a temporary vacancy. If, prior to the expiration of th temporary vacancy, the employe is disqualified or desires to give up such vacancy, or when the temporary vacancy expires, he will return to his former position provided senior employe has not exercised displacement rights thereon, or exercise seniority rights to any positions bulletined during the period he occupied the temporary vacancy. All employes affected by his return will do likewise."


        "MEMORANDUM OF AGREEMENT


              2. In the application of the first paragraph of Rule 9(h) when a regularly assigned employe is assigned in accordance with Paragraph 1 above, such employe, unless disqualified, must remain on that position for the duration of the vacancy or until the position is bulletined and assigned either as a tempora return to his former position, provided senior employe has not exercised displacement rights thereon, or exercise seniority rights to any position occupied by a junior employe bulletined during the period he occupied the temporary vacancy, except when an employe is assigned to the temporary vacancy, and works that position for any five (5) consecutive work days and is therefore entitled to

                    Award Number 20575 Page 3

                    Docket Number CL-20437


              "the rest days of that position, he will be required to take those rest days before returning to his former position or exercising seniority. All employes affected by his return will do likewise.


            This agreement will be identified as 'Memorandum of Agreement No. 71 and is effective March 1, 1971.'"


Memorandum No. 71, paragraph 2 clearly requires that (unless disqualified) when an employe is assigned to a temporary vacancy, then he must be allowed to remain on that vacancy for the duration of the vacancy. The purpose of Rule 9(f)(g) and (h) is to allow the senior qualified employe the valuable right to select higher rated positions on a temporary basis. The Claimant in this case was not disqualified and should have been allowed to remain on the position which was assigned to him by bulletin.

 The Carrier's contention, structured on rights inherent in Rule 17 of the Agreement, that no qualified employe was available to relieve the Claimant at his regular assignment is contrary to the record established on the property.

 We find that the Agreement has been violated and we thus will sustain the claim. Since the Carrier has compensated the Claimant at the straight time rate of Position 09590, based on its view of the claim, we shall subtract such payment from the amount due Claimant under this award.

        FINDINGS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.

                    Award Number 20575 Page 4

                    Docket Number CL-20437

                    A W A R D


        Claim sustained as per opinion.


                          NATIONAL RAILROAD ADJUSTMENT HOARD

                          By Order of Third Division


A-TEST:
          Executive Secretary


Dated at Chicago, Illinois, this 30th day of December 1974,
      CARRIER MEMBERS' DISSENT TO AWARD 20575, DOCKET CL-20437

      (Referee Twomey)


We dissent. The matters of record which clearly establish this claim is invalid are discussed in the memorandum submitted by the Carrier Members. That memorandum is retained in the Master File and by reference is incorporated in this dissent.

                            Mr. Naylor


                            Mr. Braidwood


                            Mr. Carter


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                          ~Mf. Euker


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                              /V

                            Mr. Youhn


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