PARTIES TO DISPUTE: Baltimore and Ohio Railroad Company
 and

STATEMENT OF CLAIM: Claim of furloughed Extra Gang Foreman, H. E. Madigan, .
 Sub-Division No. 4, Cumberland Division for pay as an
 Extra Gang Foreman beginning February 7, 1972 account
 trackman filling a vacation vacancy on Sub-division No. 4
 while Mr. Madigan was furloughed both as a trackman and
 as a gang Foreman. '
 OPINION OF BOARD: Claimant, upon return, on December 29, 1971, from leave
 of absence due to illness submitted a "return to duty slip"
 to his Supervisor which indicated that he was physically
 able to resin work. He was advised that there were no
 positions available to him at that time, by reason of his
 seniority, whereupon he told the Supervisor that he would
 like to work wherever possible. Subsequently, Claimant was
 given a copy of Bulletin No. 97 and later bulletin No. 2,'
 each advertising a foreman's position at different locations.










PL Board. No. 127.0 ~. (2)-. AWARD No. 10
 was available but was not called for the vacation relief
 assignment.
 Carrier defended its position by stating that had the Claimant
 requested to work the vacancy he would have been permitted
 to do so. On the other hand, Petitioner avers that "it is
 ' the Carrier's responsibility to notify employees of tempo
 rary vacancies and call them back to service from a
 furloughed status."
 Carrier cited Rule $0 (a) in defense of the position by
 stating that Claimant would have been assigned to the
 vacancy had he requested same. Rule k0 (a) reads:
 "New positions or vacancies if filled temporarily
 pending permanent appointment will be assigned to
 senior qualified employees upon request." (emphasis
 added)
 The vacancy in question was a temporary vacancy, a vacation
 relief assignment, and could hardly be construed as a
 vacancy "pending permanent assignment." Carrier stated
 further, ". . . it is clear that claimant's own failure
 to 'communicate his interest in working to the Carrier was
 directly responsible for his not working the temporary
 vacation vacancy." It appears that the language of the
 above-quoted rule was designed to cover situations ultimately
 leading to a permanent assignment for the reference to a
 vacancy is in the same context as the reference to a new
 position, certainly not a position which the permanen'cly
 assigned employee will be entitled to re-occupy upon his
 return from vacation. The record shows, and the Carrier
 agreed, that Claimant did advise his availability to work
 "wherever possible.',' It is not unreasonable to understand
 _. FZ Board No. 1210 ~, (3) . -. AWARD rro i0

        r -

                    why Claimant did not exercise his seniority on the two

                    permanent positions that were bulletined since they were

                    some 75 or 80 miles distance from his residence. Claimant's

                    disinclination to bid, under the circumstances, certainly did

                    not nullify the fact that he was available for work. ,Any

                    prudent,person would be able to understand that it might

                    not be possible for an employee to elect to take a position

                    at such distance from his residence; yet he could still

                    maintain his availability to perform service that was a

                    reasonable distance away should such an opportunity arise.

                    It is apparent that the Rule cited by the Carrier in defense

                    of its declination of the claim does not apply in the instant

                    case. -

                    Carrier's letter of Yarch 24, 1972 to the Claimant stated

                    in pertinent part:


                    "Had you requested the position as per Rule 40 paragraph (a) of the M of W Agreement, it would have been granted to you. Since you made no effort to do so, do not feel your claim has any merit, and it is respectively declined." 2n other words, the reason the claim was declined by Carrier was that Claimant did not follow the Division Engineer's interpretation of that particular Rule. But the record shows that Claimant did advise of his availability to work, was qualified, and held sufficient seniority. It is, therefore, our determination that, in this particular instance, the Carrier erred in declining the claim and we find in favor of Claimant.

PI. EoarURo..1210 `· (4) AWARD No.': 10

 AWARD: Claim sustained.

                  ORDER: The Carrier shall comply with this Award within thirty (30) days of the date of this Award.


                            C. Robert r.3a eye ieeutral~naoer


                    ·m

A. J Vunningham, mpy.oyee bem,oer L. W. Burks., Carrier member

 Baltimore, haryland _
 March 11,, 1974 _