Parties: Brotherhood of Railway, Airline and Steaashio Clerks, Freight
 . Handlers, Express and Station F=ployecs

 "-- - -and - .-

          - Boston and Maine Corporation .


.Statement of Claim:. "Claim of System Committee of the Brotherhcod ".'hat:

          _- 1. Carrier violated rules of the Clerks Agreement,

          · ` effective Sentember 1, 1952, as amended, when it

                    called a junior employee to fill a vacancy on the

      - fir®t trick, Chief Yard Clerks position on Tuesday,

      -' November 3, 1:70 (Election Day) in its yard at

                    Manchester, Clew Hampshire.


                  _ 2. Carrier shall pay claimant, dames B. ShuZ-rue

- -eight (8) hours pay at the Chief Yard Clerks rate
                .' plus eight (8) hours for Holiday pay for Tuesday,


Discussion: On Election Day there was a vacancy in the'Chief Yard Clerk's position at Manchester, New Uamushire because the incumbent of that position was on vacation but scheduled to report back to work at 6:30 A.M., Tuesday,
 - November 3, 1970 (Election Day). Election Day ran a local. holiday pcerned by holiday pay rules. The Chief Yard Clerk did not return at the scheduled time. Instead he had sent the Carrier 'a letter from Florida which did not ' arrive at the'Chief Clerk's office in Boston, I-Ihssachusctts, until approxi.: rately p:CO d.1:. , November 3rd, stating the: he t:·ould not be able to return until Eoveuber 10, 1970:

 On the day in question,- when the ^ravellin- Yardmaster arrived xt the I1onchesxer Office by 8:20 A.1:. he found that the incumbent of the Chief Yerd Clerk's post had not reported for ~:ork, and that the third trick yard cler:: h:A ;-lrC-::u~ loft the: Y=rd Office, having fini-hed i:ir: tour of duty.
 h uo.l : ?= t 1.B NO · I 43QI
He first called the incumbent's hone but Got no answer. .He then reported the matter to the Chief Clerk in Boston. Ile then sou-ht to ,fill the vacancy by calling Clerk. Felch whose seniority date was April 1969. .Clerk Felch, who lived in Nashua, Is. H., and who was scheduled to fill a relief a-signrent that day at 3:59 P.M. is Lowell, Massachusetts, responded to the.travellinG yardmaster's call within 30 minutes and filled the existing vacancy.
 The Clainsnt whose seniority date is November 1946, filed the instant claim contending that he should have been called to -fill the Manchester vacancy rather than Clerk Felch. The Claimant lived in·Lowe11, Massachusetts and was scheduled 'to fill an assignment at Lowell at 5:00 P.M. that day.
          Mr. Felch, who lived at Vashua, which was situated 17 raffles south

of Yanchester while the Claimant who lived at Lowell, located 30 miles south
 of Manchester. - - .. , . . . . ..'
 Men the Chief Clerk at ?on ton received the incvahent' a ? e ±rtr -: Novem-ber 3, 1970 at about 9:00 :.M.. informing the Carrier that he_would not be returning to his-post until rove=bar 10, 1970 because of illness in his family, efforts were instituted at approximately 10.50 A..::. to contact the Claimant to offer hire the incumbent's vacancy during the period that the incrnmben: would be avay. :he person at the Cla:i=Fnt's Yan2 :1o answered the telephone stated that t'_^_e Cla:.mint :-:,s away for :::e day. a:d would not be bo:ec until 4::G P.N. Later tbat doy <:t approxir.:ately 4:15 when the Carrier reached :he Clai:cant and offered hi:.-. the vacancy he rofused it.

 Tile schedule aa,-rcement rule relied uron by the Claimant is Rule
 3(b) which .xtntes: -

      "Within the coafinet o: each seniority district, emnloyeas have

      prior ri_!a~ in accurclar.cc ·rith their lmn,;th of service within

      ' tile district (fi·.:ne;a and ~'~a:.:f beir~ sufficient) to r,rorotion,


          as:-;r.::ent, dig=la:c.^-eat ~:Ci SJD ' ~~'

              3t

                    . Zit


Or&nnizstion's Position
The Organization strenses that Rule 3(b) entitled the Claimant a3

 he senior employee the right to perform the work of the Chief Yard Clerk

 t%4AMGfdraTf-:A st ::..e:-^~-.., on the day in question. When the Carrier made no attempt to contact him and instead offered the work to a junior employee, it breached the Claiman't's contractual right to occupy the vacancy.
 The Organization contends there was no emergency present. In the -first instance, the job was not filled between the 'hours'of 6:30 A.M. to 8:20 A.24.. Furthermore, most of the necessary work had already been performed by the cler% on the preeecsding third trick. The Organization asserts that there was only a ainic«cl amount of work to be performed at the tiae of the

 clerk vacancy.

 ' The Organization also denies that there is any relevancy to the

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 ~1a4~. rVa..W r v VG Vr4r.wwl.o .r.:.·v r~ ~.ye~. ~..m ~_.4r .rv. w. .. ~~ p~:'r
ployee who was utilized. Bath the Claimant and the junior employee used the
 same high speed highway and the Clamwnt.rea_uired only 25 minutes more than

                      t.j aNc!4 r_4srSA.

the junior employee to reach.c.s.~,a. The Organization asserts that the
 Claimant had a demand right to fill the vacancy and he should have been the
 first employee called to fill it. _

 The Organization states that it is irrelevant, mad the Carrier is introducing i2 only to becloud the issue, that the Carrier offered, and the Claims;tlt rejected, the vacancy when it was offered to`-him, several hours after it had been offered to the junior employee, far its duration. The Cl4itzant is not filing any claim far the ensuna days, but only for :,!ovemrer 3, 190. It .is also irrelevant to a,scrt that the Clra.mant was a1lrCedly nOt at home when he was soled at 10:50 J:.hi.. The Carrier did not call him

Qt, 8 1,k). r~

AwD No. ' .-_ 4 _
 PI,B fjo. ioqI
 for the initial vacancy, and therefore it cannot validly contend that the Claimant was not available at the time the initial call was made. Nor is there any merit to the Carrier's plea that. it should to exculzated from its contractual breach becauceAhe incu_abent of the job failed to meet his re-

 . sponsibilities to the Carrier.
          The Organization asserts that the record clearly shows that the

Claimant was entitled to be called first to fill the vac ancy,on the basis
 of his seniority, but the Carrier failed to do so, and therefore,the claim
 should be sustained. -.' ' -

                        Carrier's Position


          The Carrier denies that there is zzy merit to the claim. There

                              Wr=W GPTrh

is only one clel-k per tour assigned at and when the Travelling Yard
 aPstc= =_ _-=d at ?:=C ~_.'.:. '1..: :...:L.i r.a ::acre. on au:y, sna the third trick
 clerk already having departed, he took the necessary mears to cone lrith this emergency situation. It was an emergency situation, and it was created by the cavalier and indifferent conduct of the inclnabent in not notifying the ' Carrier tha: he :could not be able to report for duty at the conclusioa.of his vacecion v.-hen re knew in advance of the illness in his family: The Carrier asserts that the neGliGenee of the incumbent nece=aitated it calling the nerrest available employee to cover this sudden vacancy.

        . The Carrier responded to the c_.ergcacy in the mast feasible and

. exneditioun manner. Many awards of the Third Division, both off and on this property, have recognized the principle thnt in an ercrgcncy the Carrier in entitled to .a car ta_.n latitude of judg_cnt to make a c,uick decision, and the Divinioa bas refused to -cGO."d Cures the Carricr as to wheLher it made

 0e 7:05; CynediCTt ~~11C~'"::Cllt at t'lle t_rlc, i1£ 1W7:; a_^. it made U. Lood f-liti,
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    judgment, at the time it nade it. ..

The Carrier points out that as soon as it received the incu-mbcnt's
 letter, later in :he cornin, of t:ovenber 3rd, it attempted to fill the exinst
 ing v.^-cancy for the dureticn in accordance w-th strict seniority order, but
 'the Claimant eschewed any interest in she position. The Carrier assert:,
 that Claimant is attempting to ,et "eomethin- for nothing" by filing the
 claim for holiday pay although he had no. interest in filling the vacancy.
 Moreover he was not disadvantaged on i:ovember 3rd, because he worked his
 re£ular'assignment in Lowell at 5:00 F.14. -
    .The Carrier states that it should not De penalized for attempting to respond promptly to an emergency situation created by an employee's and not its, negligence in a manner that did not really ag,-rieve the Claimant.


    Findings: The Board, upon the whole record and all the evidence, finds that the employee and Carrier are Eaployee and Carrier ~-rlthiu the meani-C of the Railway Labor Act, as amended; that the Board has jurisdiction over the dispute and that the parties to the dispute ·.aerc given due notice of the hearing thereon.

    The Board finds the facts of record anti the relevant contract provision, sup?orz- =he Organization's rather than the Carrier's position.

            The clear lanF,uaue of Rule 3(b) make it evident that-the iron here

    in issue had to be a-si,ned or a%-Mrdcd Or- ::zc basis of length of service.

    The ClFi!:iant had more length of service than Clerk: rclch, and should have

    in the ordinary course of events, bcz:r, called first to fill the exiatin

    v-cancy. _


    she Board finds the deferEe ;<:y-r:ceu h5 the Carrier in:.decuatc =.I: li-ht o: the Clrijaant'o firm contractual claim -based on -seniority. Seniority

        ,I -- ~_ =6= ... --. ' P ~pPo.%o41

Mori N' _
 is a vested contractual riCht that pay be abrid;,rd or curtailed only in the most compelling of circumstances. .Such circumstances are here lackinC.
 The record shown that the Claimant only lived 13 miles further - 601fiA3rJ4 CSMA south of~-ea thin did the junior employee utilized, and since both emvloyees had to use the same high speed high-:ay, :ha distance was not of sufficient import to warrant breachinC, the Claimant's seniority. The Hoard also finds unpersuasive the Carrier's complaint that thelncuabent of the job failed to meet his responsibilities to it. GivinC full cognizance to the Carrier's justified complaint, the fact re-aims that the Claimant wa= not responsible for this breach of conduct and he should not be required to suffer a violation of his seniority rights because of atiother eaplcfee's misconduct over which he had no control.
 The Board finds no persuasive reason in the record why the Travelling Yardmaster could not have atte=pted to .fill the existing vacancy on the fiorning of rovember 3rd in strici seniority 'order. HavinG failed to do so, the Carrier breached the Claimant's seniority riChts and must therefore honor his claim. . .

 AWARD: Claim sustained. - - -

 AYILRD: The Carrier is directed to comply I:ith this A!-,'-;RD on cr before

              sr~- :'· 1973. - '


                          c~cs 3 ~1.~, ~.t. ~:,ll ;·

                          u1D=..Me.. , ,..::.i:_'/ ..


      · aid .eu:ral

      ,;r ~ Member


        .,p:..., Carrier ~.r:~ber