Whether Referee Morse's ruling was correct or incorrect, the parties had solemnly bound themselves to accept and be governed by that ruling. It is respectfully submitted that the function of the National Railroad Adjustment Board is to give effect to the agreements between the parties, and not to change them. This Division, in making the foregoing pronouncement, ignored the agreement of July 20, 1942 between employes and the carriers, and particularly that portion thereof reading:

"The parties have agreed that your decision upon the issues herewith submitted shall be final and binding."

It is the position of the Carrier that it is the province of this Division to make awards interpreting agreements between a Carrier,and its em. ployes, and that your Board has not the jurisdiction to set aside, cancel, change, annul, or by its action supersede existing agreements. In teir joint letter of July 20, 1942 to Referee Morse the parties agreed that his decision upon the matters at issue was to be final and binding. That agreement upon the final and binding nature of the' referee's decisions is still in full force and effect and is controlling.

It is the position of the Carrier that Awards 3022-3029, inclusive, of this Division are not controlling in claims (b) and (c) because they are clearly erroneous in that such awards overrule a binding agreement between the parties.

For the reasons hereinabove stated it is the position of the Carrier that the claims of the employes presented in this docket should be denied

OPINION OF BOARD: The Claimant, F. A. Paske, was a regularly assigned Signal Department employe, working 8 A. M. to 5 P. M. daily, with Sunday o8.

Starting Sunday, July 5, 1942, the Claimant was assigned to and worked as a vacation relief worker on a different shift on the same signal tower for the regular signal maintainer whose daily tour of duty was 4 P. M. to 12 midnight and whose day off was Saturday.

Claimant worked this position until midnight Friday, July 10, and on Saturday, July 11th, returned to his own regular assignment.

This claim is for time and one-half for-

(a) Time worked on Sunday, July 5, Rule 4 (a-1) (b) Time worked on July 6, Rule 3 (1-4) (c) Time worked on July 11, Rule 3 (1-4)

That part of Rule 3 (1-4) on which this claim is founded is as follows:

"Employes changed from one (1) shift to another by direction of the Management will be paid overtime rates for the first shift of each change. Employes working two (2) shifts or more on a new shift shall be considered transferred."

Since the time worked by Claimant on Monday, July 6, was not the first shift which he worked on the position to which he was assigned as a vacation relief worker, his claim for that time must be denied. Rule 3 (1-4) on which Claimant relies covers only the first shift on a change.

The shift the Claimant worked on Sunday, July 5, the first shift as vacation relief worker, and the first shift back on his own position on July 11, were first shifts on a change of shifts within the express previsions thereon in Rule 3 (1-4).

The work performed by Claimant on Sunday, July 5, was also expressly covered by the Sunday and Holiday Service Rule, Rule 4 (a-1).

The Carrier insists, however, that these rules in the 1939 agreement are superseded by the Vacation Agreement of December 17, 1941, and the va-

rious interpretations thereof by Referee Wayne L. Morse made pursuant to an agreement of the parties for arbitration in which they agreed that the Referee's decision upon the issue submitted should be final and binding.

The Carrier relies chiefly on Article 12(a) of the Vacation Agreement which provides:

"Except as otherwise provided in this Agreement a carrier shall not be required to assume greater expense because of granting a vacation than would be incurred if an employe were not granted a vacation and was paid in lieu thereof under the provision hereof."

This rule was submitted to the Referee for interpretation, the Carriers contending (pages 95 and 96 of Vacation Agreement booklet) that the prohibition in said Article 12 (a) against greater expense "takes precedence over any schedule rule which would create such expense."

The Referee decided against the Carriers on this contention, saying (P. 98):

"As the Referee has stated elsewhere in this decision, throughout the negotiations which led up to the vacation agreement, it was definitely understood by the parties that the vacation plan should not be administered independently of existing working rules, but rather, that in those instances in which existing working rules, if strictly applied, would produce unjust results, they should be modified through the processes of collective bargaining negotiations conducted between the parties or if necessary through those procedures of the Railway Labor Act which provide for the settlement of disputes."

"(5) That the provisions of existing working rules agreements as to relief workers are by implication a part of the vacation agreement, binding upon the parties except in so far as they are modified, changed, or waived as the result of negotiations conducted under Article 13."

The Carrier also leans heavily on the opinion of the Referee (p. 101) on an illustration submitted by the Carriers of a shop craft employe claiming time and one-half for the first shift on vacation relief work and on first shift on return to hiss own position. If the shop craft employes were working under the same schedule rule as Rule 3 (1-4) here in question, the Referee's opinion on the illustration is contradictory to his decision on the interpretation of Article 12 (a) as set out on pages 98, 99 and 100.

In Awards 2340 and 2484 this Division, Edward F. Carter, as Referee, decided that it was the intent of the parties in the Vacation Agreement "that existing rules and agreements were to remain in effect unless changed by negotiation" In Award 2537, Blake, Referee, and Award 2720, Tipton, Referee, the same result was reached

In Award 3022, this Division, Referee Carter, after having fully considered the same contentions as have been made by the Carrier in this case, decided that the rules of the schedule agreement should prevail over provisions of 12 (a) of the Vacation Agreement as interpreted by Referee Morse. In view of the above we are of the opinion that Claims (a) and (c) should be sustained and Claim (b) should 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 Employe involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

AWARD