"The procedure outlined in the above mentioned letter has been followed since that date and has been working very satisfactorily. Shortly after the force reduction in the Spring of 1938, Agent Maher received instructions from the General Superintendent's Office to disregard the instructions contained in this letter, and to discontinue working any employe more than one shift in a twenty-four hour period regardless of the fact that in so doing the employe would be exercising his seniority for extra work as provided in Rule 68.

"Employes contend that the Carrier violated Rule 68 when it failed to call Messrs. Johnson and Rolen to fill the vacancies on May 29, 1938 and June 3, 1938 respectively, and it, therefore, should be required to reimburse said employes for wage losses suffered as a result of the Carrier's action.

"The Rules, Facts and Circumstances in this claim are in all respects similar to or identical with the Rules, Facts and Circumstances in cases disposed of by Awards Nos. 105, 106 and 107 and the principles therein established support similar award in this claim."

POSITION OF CARRIER: "Notwithstanding the principle involved and the apparent acquiescence of the organization in our views until June 10, 1938, as indicated in the excerpts quoted in the Statement of Facts, we reluctantly agreed to the following interpretation involving the application of Rules 18 and 68 of the current agreement, effective July 15, 1938:

'It is understood that regularly assigned messengers holding dual seniority as messengers and yard clerks will participate in all extra yard clerk work in accordance with their seniority, except to the following extent:

'1st. Any messenger working two tricks in 24 hours (one as messenger and one as clerk) will not be permitted to work his regular trick as messenger the following day.

'2nd. No messenger will be permitted to make a total of more than six days in one week in the combined capacities, in the exercise of his seniority.'

"This interpretation, of course, has no effect on the time claims of Messrs. Bolen and Johnson, May 29 and June 3, 1938, which are not valid under the practices that existed for the past several years, during all of which time we were of the opinion that the Clerks' organization was unalterably opposed as a matter of principle to extra or furloughed forces working two tricks in 24 hours £o the detriment of extra yard clerks who held no seniority as messengers and could not participate in that work. Note particularly excerpts from letters of July 26, 1934, and December 17, 1935.

"In addition to the claims being without merit under the practices that existed under the rules on the dates involved, we feel that our action in agreeing to the organization's viewpoint, notwithstanding our belief in the principle involved, is sufficient reason for withdrawal of any claims originating prior to that time."

OPINION OF BOARD: During the depression considerable dissatisfaction developed among the employes as to the method followed in working furloughed employes on the property of this carrier who had been reduced from clerks to messengers and who still retained their clerical seniority. This finally led to a conference between the parties at which an understanding was reached and embodied in a letter dated January 8, 1936 from the General Superintendent of carrier to the General Chairman of the Brotherhood, as follows:

"In our conference yesterday we discussed the practice of messengers at CD working two shifts within a 24-hour period.

"There is no warrant, especially under present conditions, for employes working more than one shift in 24 hours unless they do so in

596

Johnson's claim is based on failure to call him to vacancy on position of clerk, North Hump, C. D. Yard Office, on May 29th, 1938, hours 7:00 A. M. to 3:00 P. M. Johnson had worked as a clerk at Cabin No. 1 from 3:00 P. M. to 11:00 P. M., May 28th, consequently was not available for vacancy on position of clerk at North Hump, C, D. Yard Office, on May 29th unless used twice within 24-hour period.

Rolen's claim is based on failure to call him to vacancy on position of clerk at Cabin No. 1, C. D. Yard Office, on June 3, 1938, hours 11:00 P. M. to 7:00 A. M. Rolen had worked as a messenger from 3:00 P. M. to 11:00 P. M. June 3, and was not available for vacancy on position of clerk at Cabin No. 1, C. D. Yard Office on same day unless used twice within 24-hour period.

These claimants held seniority rights over the employes used to fill the vacancies and their claims are based on the contention that their seniority rights to vacancies of this character were preserved in the understanding embodied in the letter of January 8, 1936.

We do not so construe this letter. To place such an interpretation upon it would render it practically meaningless. The parties attempted in this letter to meet a practical situation and the clear intent of the letter was to limit employes to one shift in any 24-hour period except in emergency cases as outlined in the letter. As further evidence that such was the intention of the parties, shortly after these claims arose the parties to the Agreement held another conference and entered into a Supplemental Agreement relating to this matter, effective July 15, 1938, under which no claims of this character may arise in the future.

The Board finds that the agreement of July 15, 1938 expresses the intent of the parties as embodied in the agreement of January 8, 1936. The claim will be denied. '

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the carrier in the action complained of did not violate the agreement between the parties.

AWARD