THIRD DIVISION Locket Number MW-24511


                    Robert W. McAllister, Referee


                (Brotherhood of Maintenance of Way Dnployes

PARTIES TO DISPUTE:
                (Chicago, Milwaukee, St.Paul and Pacific Railroad Company


STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The cancellation of the seniority rights of Section Laborer Jewell C. Weaver on April 15, 1980 was improper and in violation of the Agreement (System File CN42/D-2431-1).
(2) The claimant shall be reinstated with seniority and all other rights restored and unimpaired and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: The Claimant's position as a section laborer on Extra Gang
 5535 was abolished on February 15, 1980. He exercised his seniority to a laborer's position on Crane Section 4609 and, thereafter, took a one week vacation from February 25 through February 29, 1980. Claimant was unable to exercise his seniprity to another section laborer's position, but did perform temporary service on March 2, 3, April 2, 3, 9, 10, and 11, 1980.
On April 14, 1980, the Claimant filed his name and address with the Division Manager's office. Under date of April 15, 1980, Division Manager J. W. Stuckey-advised the Claimant he had forfeited his seniority under the provisions of Rule 10.
A hearing was requested by the Claimant which was granted and held on Mary 15, 1980. Subsequently, the Carrier reaffirmed its position that the Claimant had forfeited his seniority. .
The Carrier argues that the Claimant had thirty-five (35) days from February 29, 1980, in which to file his name and address to protect his seniority and since he did not do so until April 14, 1980, or forty-five (45) days hence, he forfeited his seniority under Rule 10.
The Organization contends that the Claimant had exercised his seniority subsequent to February 29, 1980, i.e., March 2, 3, April 2, 3, 9, 10 and 11, 1980, and, therefore, by filing his name and address on April 14, 1980, was well within the thirty-five (35) days stipulated in Rule 10. They submit that this exercise of seniority is contemplated in Rule 9 (c) in that the Claimant did perform actual service on the referred to dates.
          Award Number 24680 Page 2

                    Docket Number MW-24511


The Board does not dispute the Carrier's position with respect to its interpretation of Rule 10 in this instance. The Claimant was clearly outside the stipulated time requirements when he filed his name and address on April 14, 1980. However, this Board is also cognizant of the fact that the Carrier allowed the Claimant to perform temporary service well beyond the expiration of the thirty-five (35) day time limit. Thus, the Board is inclined, based solely on the circumstances peculiar to this dispute, to restore the Claimant's seniority without compensation for time lost.
        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Dnployes 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 jurisidiction over the dispute involved herein; and
        That the Agreement was violated.


                          A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
      Nancy J. veOPE'xecutive Secretary


Dated at Chicago, Illinois this 24th day of February, 1984
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