It has been the recognized practice on this property throughout the life of the current and prior agreements to allow employes the straight-time rate of the job in all cases where they personally exercise their seniority under circumstances here involved, as provided by Rule 12, without protest by the petitioner, which is clear evidence that the petitioner has considered such to be the proper application of the rule.

Inasmuch as the petitioner's position cannot be sustained by any rule of the agreement, the carrier respectfully submits that within the meaning of the Railway Labor Act, the instant claim involves request for change in the agreement which is obviously beyond the purview of this Board. It is a well-established principle that it is not the function of this Board to modify an existing rule or supply a new rule when none exists.

CONCLUSION

The carrier asserts that it has conclusively established that the claim in this docket is entirely lacking in either merit or agreement support and requests that said claim be denied.

FINDINGS: The Second 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 employe 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.

The parties to said dispute were given due notice of hearing thereon.

The organization contends carrier improperly compensated Carman F. M. Delgadillo and T. Quintana for the services they performed for carrier on Thursday, April 15, 1954, during the hours from 11:00 P. M. to 7:00 A. M. In view thereof it asks that we order carrier to compensate each claimant for four additional hours at the applicable straight time rate, basing the right thereto on Rule 12 of the parties' controlling agreement.

Rule 12, insofar as here material, provides:

"Employes changed from one shift to another, will be paid overtime rates for the first shift of each change. * * * This will not apply when shifts are changed in the exercise of seniority

On Thursday, April 8, 1954, carrier notified claimant Delgadillo wrd Carman G. N. Breeland that the positions they were occupying at Tracy, California, were being abolished effective at the close of their respective shifts on Wednesday, April 14, 1954. Delgadillo was then occupying a position of car inspector with a shift from 3:00 to 11:00 P. M. On Thursday, April 15, 1954, Delgadillo, by written application filed with carrier, exercised his seniority and displaced a junior carman on a car inspector's position with hours of duty from 11:00 P. M. to 7:00 A. M. and `vas paid 8 hours straight time for filling the first shift thereof on that day.

On Thursday, April 15, 1954, after his position had been abolished effective on the preceding day, Breeland displaced Claimant Quintana from a position of car inspector he then held, which had a shift from 3:00 to 11:00 P. M. Thereupon Quintana, by written application filed with the carrier, exercised his seniority and displaced a junior carman holding a car inspector's position with a shift from 11:00 P. M. to 7 :00 A. M. For the services he rendered in filling this position on Thursday, April 15, 1954, Quintana was paid for 8 hours at the straight time rate applicable thereto.

It is the contention that what was here done came within the quoted provision of Rule 12 and that each claimant should have been paid at the overtime rate for the first shift of the position he filled on Thursday, April 15, 1954. Carrier, on the other hand, contends the facts bring it within the exception, that is, that the shifts were changed by each claimant in the exercise of his seniority.

We think the factual situations surrounding claimants, which resulted in each claimant changing his shift, are controlled under the rule here applicable by what we held in Awards 1546 and 1816. In Award 1546 we said

"This specific exemption is in no way qualified as to the act being voluntary or involuntary."

"The positions of these claimants * * * were abolished. There were no shifts on the abolished positions remaining to (here from) which a change could be made."

That the parties' controlling agreement contemplates carrier may do what it here did is evidenced by the following quote from Rule 29 (e) of that agreement:

"When assignments are changed through the operation of this rule, or through the abolition of jobs, employes affected will be allowed to place themselves in such jobs as their seniority and qualifications entitle them to, but only such employes who are actually disturbed by re-arrangement of jobs caused through reduction in forces or abolition of jobs, will be permitted to exercise seniority in this manner."

But it is contended carrier elected to reduce its forces at Tracy, California, and, in doing so, did not comply with the requirements of Rule 29 (a). Rule 29 (a), which relates to "Reduction and Restoration of Forces", provides, insofar as material here, that:

"Employes will be laid off in accordance with their seniority,

Assuming this provision has application to what carrier did, a question not before us and one we therefore do not decide, we think it would not help claimants for the claims before us are not claims for being improperly "laid off."

Award 1856 of this Division is cited as here controlling. The factual situation disclosed by Docket 1730, on which the award is based, is different and consequently that provision in Rule 19 (a), upon which the award is premised, has no application here. We cannot agree that the holding in Award 1856 is controlling of the situation now before us.

In view of what we have herein held we come to the conclusion that the claim is without merit.

AWARD