Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28048
 THIRD DIVISION Docket No. MW-27329
 89-3-86-3-541
 The Third Division consisted of the regular members and in
 addition Referee Irwin M. Lieberman when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when it assigned section laborers to fill a temporary vacancy as foreman of Section 1 on February 4, 5, 6, 7 and 8, 1985 and a foreman of Section 4 from March 1 through March 18, 1985 instead of assigning and using Foreman F. Watters who was available and qualified to fill those vacancies (Carrier's Files 8365-1-191 and 8365-1-192).

 (2) The Agreement was violated when the Carrier assigned and used Extra Gang Foreman Venier to perform overtime zeivfce on Section 1 on February 9, 1985 instead of Foreman F. Watters who was :,vailable and qualified to perform that service (Carr
(3) Because of the violation referred to in Part (1) hereof, Foreman F. Watters shall be compensated for all time worked by section laborers, including overtime, in fill
(4) Because of the violation referred to in Parts (1) and (2) hereof, Foreman F. Watters shall b of pay at his time and one-half rate."

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

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and em-loyes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has ,jurisdiction over the dispute involved herein.
Form 1 Award No. 28048
 Page 2 Docket No. MW-27329
 89-3-86-3-541

 At the time of the incidents involved in this matter, Claimant, a Foreman, was on furlough due to a general force reduction. The record reveals that on February 4, 1985, a five day temporary vacancy was created on Section Gang No. 1 due to the regular Foreman being on sick leave. A Trackman was assigned to the temporary there was overtime for that Trackman on the Foreman's job on February 6, 1985. In addition, from March 1 through March 18, 1985, a temporary vacancy was created on Section Gang No. 4 for a Foreman due to the incumbent having been injured. A Trackman, holding no seniority as a Foreman, was assigned to the vacancy on Gang No. 4. In all these instances the Organization insists that Claimant should have been called to fill the temporary vacancies on the two gangs.

 The issue of the use of furloughed employees to fill short term temporary vacancies (of less tha these same parties and resolved in Third Division Award 28047. In that Award it must also be noted that Article 24 also supports Carrier's use of an onduty employee to fill the provides:



For the reason expressed above as well as the reasoning contained in Third Division Award 28047, it must be concluded that the Claims herein are without merit.




                          By Order of Third Division


Attest:
      Nancy J. -Executive Secretary


Dated at Chicago, Illinois, this 10th day of August 1989.
            LABOR MEMBER'S DISSENT

            TO

            AWARDS 28047, 28048, 28050, 28051,

            28052, 28053, 28054 and 28056

            Dockets MW-27990, MW-27329, MW-28033, MW-28036

            MW-28038, MW-28039, MW-28041 and 28113

            (Referee Lieberman)


With the exception of Award 28050 which dealt only with the interpretation of the applicable rul the Carrier and on the merits of the dispute. Unfortunately, the Majorities' ruling on both issues i certainly erroneous. The Organization appealed this claim to the Assistant Director-Labor Relation who was designated by the Carrier to receive same. The designated officer did not respond. However, another Carrier officer responded and the Organization rightly contended that the Carrier was in default and the claim should be allowed as presented. Conversely, the Majority held that, "There is no restriction provided in Rule 41 with respect to the identity of the officer who is authorized to disallow a claim (see Third Division Award 20790)." Without explanation, the Majority relied on an award that has been shown to be palpably erroneous thusly in Award 14 of Public Law Board 1844:

    "The claim was denied on October 30, 1974 not by the Division Manager to whom the General Chairman had presented the claim but by the Assistant Division Manager. Subsequently on January 14, 1975 the General Chairm claim to the highest level on the property on the alternative grounds of a violation of Rule 21 as well as the merits of the Scope Rule claim. Carrier does not deny that the Division Manager did not respond to the claim s but contends that the response of the Assistant Division Manager is sufficient for compliance with Rule 21. Thus, Carrier maintains that the case should be decided on its merits, if any. In support of its contention Carrier cites Third Division Award 20790. The fact that Award 20790 involves these same parties and Agreement woul weight if Rule 21 were a local rule but in fact that Agree-

    ment provision flows from the August 21, 1954 National Agreement. The question presented herein impression and the great weight of authority on this subject is contra to Award 20790. In the most recent of these controlling precedents which has been b the Third Division sustained a similar claim and stated as follows:


    For other cases with similar results see Awards 11374, 14031, and 16508. We find that Carrier failed to comply with Rule 21 and by its express terms that Rule requires that the claim or grievance shall be allowed as presented. We have no need or authority in the circumstances to review the merits of the claim. The claim must be sustained and paid as presented." (Underlining in original)


Following an alleged review of the appropriate rules of the Agreement, the Board, "concludes that Carrier is not required to recall employees from furlough for vacancies of less than thirty days' duration (although it has the option to do so)." The Majority has in effect negated a furloughed employes' seniority and his right to be recalled to service in recognition of that seniority. By leaving the Carrier the option to apply the seniority provisions of the Agreement does nothing more than remove those provisions from the Agreement. Such was not the intent of the parties when the Agreement was consummated and th or change the Agreement or its intent. I, therefor, dissent.

                                D. El. Bartholomay

                                Labor Member


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