Division, wherein it had been held that pay schedules were inapplicable to employes attending investigations, is evident from the 'Opinion of Board' as expressed in Third Division Award 605 (Docket TE-593) also rendered with Referee Frank M. Swacker participating, which stated:

'As stated by the Referee in Award 134, were this a new question the disposition of the Board would be to hold that services of the nature involved in this case are such as would fairly come within the contemplation of the word "work" as used in the rules, however, the weight of authority is to the effect that it is not "work" as so used and numerous agreements have been re-written since many of these decisions were rendered without making any change to cover situations of this sort. See Award 588. Consequently the Board is indisposed to overrule this line of authorities: (Emphasis supplied.)

"Award No. 588, Docket No. SG-600, is dated March 21, 1938. Following the issuance thereof, the Employes through their representative, Brotherhood of Railroad Signalmen of America, entered into negotiations with the Carrier under the Railway Labor Act for revision of 'Rules for Signal Employes effective February 1, 1929: As a result of such negotiations an agreement was reached between the parties, identified as 'Rules for Signal Employes effective June 1, 1939.' That agreement does not contain any provision requiring the Carrier to make payment to employes for attending investigations; and bearing in mind the basis upon which Award No. 588 was rendered, it is significant, as it is evident, that the employes in the person of their representative did not negotiate such a rule. The lack of a rule to sustain the claim will continue until one is negotiated between the parties in the manner prescribed by Article VII, Section 11 of the 'Rules for Signal Employes effective June 1, 1939.'

"The Carrier submits that the following conclusions warrant a complete denial of the instant claim:

(1) Work as defined in the governing agreement was not performed by Signal Maintainer Houser in attending the investigation July 23, 1940.

(2) Signal Maintainer Houser lost no time on July 23, 1940, as a result of attending the investigation.

(3) Neither Section 13, Article 2 or any other rule of the current Rules for Signal Employes effective June 1, 1939, supports the claim.

(4) Previous awards of this Division support the action of the Carrier.

"The Carrier has not been served with a copy of the Employes' submission and, as a consequence, has not been informed of what it contains; therefore, while reserving the right to make answer before or at the hearing of this dispute, in such manner as may in its judgment be warranted, to the contents of the Employes' ex parts submission when copy thereof is before it, the Carrier now deals only with the contentions and allegations so far presented to it by the Employes."

OPINION OF BOARD: The facts are not in dispute. Claimant, Houser, is the regularly assigned second trick Signal Maintainer at the Carrier's Mission Tower, Los Angeles, California, with hours of duty from 4:00 P. M. to 12:00 Midnight daily except his day off or his Sunday which is from 4:00 P. M. Monday to 4:00 P. M. Tuesday each week. W. O. Dunn was a Relief Signal Maintainer at the same place. Both were directed by the Assistant Superintendent of the Carrier to attend an investigation at his office from 10:00 A. M. to 12:30 P. M. on Tuesday, July 23, 1940, as witnesses for the Carrier of a derailment of an engine, with which incident neither had any connection or responsibility. Each presented his claim to the Carrier for 3 hours' overtime at the rate of time and a half. Dunn's claim was allowed and paid and Houser's was refused.

The mere fact that Dunn was paid for the identical service is not of controlling importance in determining the validity and justice of Houser's claim.

The Carrier contends that "Houser, having performed service on that date, would not be entitled to time attending the investigation which was held outside of his assigned hours. Dunn, not having performed any service on that date and having been required to attend the investigation on his regular day off as witness, should be paid under the call rule." But, as stated above Houser was "required to attend the investigation on his regular day off."

It was recognized in Award 588 by Referee Swacker that, "There is a sharp conflict in decisions concerning payment of employes for time consumed in attending investigations, the majority holding in substance that it is not `work' in the sense used in the rules so as to bring into play the Call rule or other rules governing work. There may be some warrant for this view in cases such as where an employe is required to attend an investigation involving fault of his own or where he may be called upon for rules or physical examination, in which matter he has a mutual interest with the Carrier. In the instant case, however, the employe was in no way involved and was merely a witness," so the claim was there allowed.

So, here, the employe was ordered to attend on his day off Call dutyhis Sunday-and concerning a matter with which be bad no connection. The reason assigned for paying Dunn and declining to pay Houser is not convincing.

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 employe involved in this dispute are respectively carrier and employe 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

AWARD