POSITION OF CARRIER: The Committee cites two rules in support of the claim, namely, Article IX and Article VII (b).

Article IX reads-

"Employes will not be required to suspend work during regular hours to absorb overtime."

It should be noted that this rule is in the alternative-"to suspend work or to absorb overtime". This is not accidental. Rule 9 of the old rules, effective July 1, 1939, from which the present Article IX was copied was in the same wording. During negotiation of the present rules the Chief of Personnel of the Boston and Maine Railroad urged that the rule be changed to read= `suspend work during regular hours in order to absorb overtime", but the Organization insisted on the wording as it now stands.

From the Joint Statement of Facts it is obvious that Mr. Pine worked every day and, therefore, was not "required to suspend work".

Was he then "required * * * to absorb overtime"? Nowhere, either in the Statement of Claim or the Joint Statement of Facts, does it appear that Mr. Pine worked any overtime or that he earned any overtime that he could be required to absorb.

The language of the rule is clear and unambiguous and clearly provides for contingencies that every Railroad man must recognize. The words "absorb overtime" in their natural meaning indicate that overtime work must have been performed before a man can be required to "absorb overtime". Until the overtime work has taken place there is nothing to absorb. One cannot absorb something that does not exist.

Therefore, since Mr. Pine was not required to suspend work or to absorb overtime, there is no claim under Article IX.

The Committee next claims payment in accordance with the provisions of Article VII (b). Article VII (b) reads as follows:

"Employes notified or called to perform work not continuous with the regular work period will be allowed a minimum of three (3) hours for two (2) hours' work or less, and if held on duty in excess of two (2) hours, time and one-half time will be allowed on the minute basis."

This is the familiar Call Rule known to all Railroad men and is applicable only to employes called to perform work "not continuous with the regular work period" The words "regular work period" mean and always have meant the regular work period of the job the man is filling-not the work period of some other job that he might be filling.

Neither Article V (b) nor Article IX has any bearing on this claim, nor does the Statement of Facts disclose any violation of either of these rules.

It is submitted that by this submission to the Third Division the Committee is attempting to write into the rules something that is not there and that an affirmative award cannot be granted unless the Third Division writes a new rule without negotiation. The Carrier respectfully urges that the National Railroad Adjustment Board is without authority under the Railway Labor Act to write such a new rule.

OPINION OF BOARD: Claim is made on behalf of R. W. Pine. On January 23, 1945 Pine occupied a position at Tower "A", assigned hours 11 :00 p. m, to 7:00 a. m. On that date the Carrier advertised for bids on a position at Edgeworth, assigned hours 8:00 a. m. to 5:0o p. m. Pine was the successful bidder and was so advised on February 23, 1945. On March 19th, Pine notified the Carrier that unless placed on the Edgeworth position by March 26th, he would file claims under Articles VII and IX of the Agreement. He was placed on the Edgeworth position on March 28, 1945. He claims compensation for March 26th and 27th.

On April 7, 1945, the Carrier advertised a position at Tower "C" hours 11:00 p. m. to 7:00 a. m. Mr. Pine was the successful applicant. He was placed on that position May 13, 1945. He claims compensation for the time from April 27th to May 12th, inclusive. He claims also the relief day position for the calendar weeks beginning April 29th and May.6th, because those days were worked by the employe who occupied the position.

The Organization bases its claim in part upon the provisions of the following rule. The sentence in Article XII: "The successful applicant will be placed on the position within twenty (20) days after vacancy occurs." The Carrier admits that this rule was not complied with, but insists that it carries no penalty. The purpose of the rule is obvious, and that is to assure to the successful bidder that he will be placed in the new position within the time stated in the rule. The rule is for the benefit of the employe. To give him that benefit he must either be transferred to the new position within the time stated in the rule, or be treated as having been so transferred as of the last day of the 20-day period, insofar as the applicability of the other rules of the Agreement is concerned.

For reasons stated in the submission, the employe does not claim the benefits of the rule as to the Edgeworth position prior to March 26th. He claims it for March 26th and 27th. For the purpose of the rule, he must be treated as having been actually transferred to the Edgeworth position on March 26th as his regular position, although working at Tower "A" on those days. Likewise, he must be treated as having been actually transferred to the Tower "C" job on April 27th, although working at Edgeworth up to and including May 12th. So we have this situation: For the times involved in this claim, the employe was not working at his regularly assigned positions.

The Organization submits that this claim was progressed on the property along with the claims of employes Dillon, Carter, and Kelley, involving similar situations and the same rules, and those three claims paid, and Pine's claim denied. The Carrier states in its Rebuttal, dated May 1, 1946, that in the Dillon, Carter, and Kelley claims, the Claimants were removed from a location which they occupied, and that Pine was not removed from the position which he occupied. Again in its statement, filed June 10, 1946, the Carrier states that those three employes were required to leave their positions while Pine was not required to leave his position. On that basis it justifies the payment of the three claims and seeks to justify the denial of the claim of Mr. Pine. As we have pointed out, that distinction is of no merit, for Mr. Pine must be treated as having been removed from the positions to which be was entitled under Rule XII. From the standpoint of the parties, the situations are identical and the employes involved should be accorded equal treatment. On that basis, we conclude that the claim should be sustained.

This is a joint submission and this disposes of the questions submitted in the joint submission.

However, in its Rebuttal, dated May 1, 1946, the Carrier presents the contention that an emergency existed and that Article XV applies and submits facts to sustain its contention in that regard. On behalf of the Carrier an emergency is argued to the referee. It is not contended that the emergency issue was raised on the property. Section 3 First (i) of the Railway Labor Act provides that where an attempt to settle a dispute fails on the property "the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of facts and all supporting data bearing upon the disputes." As this record stands, this dispute was progressed on the property and submitted here by joint submission without any reference to an emergency as a defense. That issue was not, an unsettled one on the property. It was not submitted here as an unsettled issue. The Organization contends that the issue cannot be raised here at this stage of the proceedings. We pass the question as to whether or not it may properly be raised at this time and hold that an emergency is not shown to have existed.

That the parties waived oral hearing thereon;

That the employe is entitled to the payment claimed.

AWARD