.,c=x°m 1 NA'T'IONAL RAILROAD ADJUSTMENT BOARD Award No. 7167
 SECOND DIVISION Docket No. 7037
 2-SP(PL)-MA-'76

( Irgtez°nat3_oual Association of Machinists
 ( R.:.:i,": t°ospace workers
 Parties to Di8,put
 (, Saut`?P,,_ T13v Lfic Transportation Company
 (Pacific Lines)

 D s z"O-Tiq of
 i putc:
That Carrier has ir~properly computed wages fox sexwice in the month of June 1975 for :ri:;nthly rated Traveling Motor Car Mechanic M, R. Schaible (hereinafter referred to as Claimant).



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, 193+.

 This Division of the Adjustment Board has jurisdiction over the .dispute: involved herein.

This dispute requires interpretation of Rule 2(b) and the further resolving of whether or not a standard rate should apply in lieu of a fluctuating scale crow used by Carrier. Rule 2(b) of the controlling Agreement is as follows:
 Foxn 1. ~'jaaxc. F, "O, 7167
 .t a,~ s- Docket E0. 7037
 2-sP(PL)-MA-'76
 ' .~Ic;n;;~n.;i r::.~,e~: traveling motorcar mechanics assigned to
 dx;v.a.E=~ ;w1 Tz.Lr7_r.~; them to uror~:, w;za_t ox travel as regulated
 by i,xr:.i~:: :;e'r-"r=1-0P :~11 the. ctj.a~ ~scwt;e : of the'-, :r work, and for whom








The basic month~,r rate rece_i7rr;r1 e)y (.laimant at the time of the instant claim was $1.,019.2?, rahich is pzeca.ic::atecz upon 175 1/3 hours of service per month. It is the cai,::.erxtiorr of the Organization that any time after 175 1/3 hours, overtime applies. ca:rrriev c:oatendu that overtime does not apply irk any event because of the above quoted mule 2 (b) and more specifically the underlined portion of raid. Pule above ~_,uoted. In this dispute, Claimant worked 292 1/2 hours 1.n the month of tune , ~! ;a'l 4, which was 117 if 6 hours in excess of the normal monthly hours of service of 175 1/3. Of the total 292 1/2 hours worked by Claimant 60 hov.rs' service was performed on rest days and Claimant was compensated fox these 60 hours at time and one-half rate. 57 1/6 hours were worked on regular work days in excess of the established monthly hours of 175 1/-3 fox which Claimant was compensated at the straight time. Therefore, this Claim is submitted for time arid one-half rate of pay fox the 57 1/6 excess hours, which has been denied 'by Carrier. There is no dispute between Parties relative to the monthly raise in existence at the time of this Claim (1,019.23) or the faces that the monthly rate is predicated upon 175 1/3 hours per month. Rule 2(b) is specific in requiring the straight time hourly rate to be detexmined by dividing the monthly rate by the number of hours comprehended. by said rave, which is :L75 1/3. The straight time hourly rate as comprehended. by Rule :' (b ) is $5. 81 ($1, 019. 23 divided by 175 1/3 equals $5.81); however, CaxxJ_er uses a method whereby the rates fluctuates from a, low of $5.54 for a 23 day -work month to a high of $6.71 for a 19 day work month. It is the position of the organization that all hours of service performed by . Claimant during 'the month. of June, 1974, which were in excess of 175 1/3 should have been paid at the t:i.rrie and one-half. rate. It is the position of Carrier that Rule 2(b) precludes the payment at the overtime rate for any hours in excess of the 175 1/37 erc.·.ept those hours performed on rest days and holidays. It is the opinion, of this Board that it was not the intent of the Agreement to place monthly rated ernplayes in a worse position with respect to compensation than hourly rated employer, to uphold Carrier's position, monthly rated employer would be penalized. Therefore, this Board holds that the Agreement intended. to apply 'to taro extent 'that employe has not exceeded the 175 1/3 hours :per month; arid f;hat when an employe such as Claimant has performed service of 1`T5 1/3 hours per month, all hours in excess thereof for any such month shall be at the rate of time and one-half. This Board further holds that the standard 5.87_ rate shall be applied. to all straight time issues, and that the fluctuating s(.tale now u:w~:; by Car°riex° shall be discontinued.
 F crm 1 Award No . 7167
 Fzge ~ Docket No. 7037
 2-SP(PL)-MA-'76






Attest: Executive Secretary
 National Railroad Adjustment Board

 B i
 y ~~y~ . _r: .
    Rosemarie Brasch°-- Administrat ve Assistant


Dated at Chicago, Illinois, this 16th day of November, 1976.
        CARRIER MEMBERS' DISSENT TO AWARDS 7167, DOCKET 7037

        7168, DOCKET 7038

        7169, DOCKET 7040

        7170, DOCKET 7041


In these awards the Referee correctly holds that Rule 2(b) is controlling, but then exceeds the jurisdiction of the Board by arbitrarily refusing to apply the rule as it is plainly written.

 Rule 2(b) states that to monthly rated employees "No overtime will be allowed for time worked in excess of eight (8) hours per day. . .'' Thus, the parties could not have written a more clear, direct and absolute prohibition against allowing overtime for time worked in excess of eight hours per day. This prohibition is not discriminatory because other benefits which guarantee the monthly rated employee appropriate and adequate compensation are provided for in the agreement.

 In drafting these awards, the Referee has refused to apply these clear provisions in Rule 2(b), and has attempted to engraft limitations thereon. The sole reason offered for this action is obviously arbitrary. This reason is stated as follows:

        ". . . It is the opinion of this Board that it was not the intent of the Agreement to place monthly rated employes in a worse position with respect to compensation than hourly rated employes. . ."


The assumption which serves as the sole basis for this "opinion", namely, that monthly rated employees will be in a worse position with respect to compensation than hourly rated employees if overtime is not allowed contrary to the clear provisions of the rule, is utterly false and unsupported by anything in the record; but even if this assumption were correct, it could not properly serve as a basis for refusing to apply the clear and unequivocal provisions of the rule as the parties have written them.

 It is elementary law that this Board's powers are limited to the interpretation of agreements. We have no right to ignore clear provisions of an agreement or to change such provisions, either overtly or under the guise of interpretation.

 We respectfully submit it is obvious that these awards constitute an invalid attempt to change the parties' agreement; and we direct attention to the fact the new method of payment which the Referee has illegally attempted to establish would have the preposterous effect of requiring the payment of overtime to a monthly rated employee for working during his regularly assigned hours at the end of a long month.
 CARRIER MEMBERS' DISSENT TO AWARDS 7167, 7168, 7169, 7170 Page 2

 The memorandum submitted by the Carrier Member at the panel discussion of this case correctly states the issues as well as the law, and it is incorporated herein by reference.

    We dissent.


                                      L -~''~-J ~''1,~''


                                  (/" - ~ - - \ .


                                06 -


a4*