agreements concerning rates of pay, rules or working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreements between the parties to it. To grant the claim of the Employes in this case would require the Board to disregard the Agreement between the parties thereto and impose upon the Carrier conditions of employment, and obligations with reference thereto, not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.

CONCLUSION

The Carrier has shown that, under the applicable Agreement between the parties to this dispute, that the Claimant is not entitled to the compensation as claimed.

It is, therefore, respectfully submitted that the claim is not supported by the applicable Agreement and should be denied.

Exhibits not reproduced.

OPINION OF BOARD: The facts in this case are not in dispute. They appear in the record in a Joint Statement of Agreed Upon Facts.

"On September 24, 1945, R. R. Gamble was assigned as Tallyman, Van Wert, Ohio, Freight Station, tour of duty 8:00 A.M. to 11:30 A.M. and 12:30 P.M. to 5:00 P.M., rate of pay $167.96 per month, relief day Sunday. On this date two merchandise cars arrived at Van Wert Station from Fort Wayne, with a total tonnage of 29,861 lbs. This was an unusual amount of freight for one day, and in order to get it onto the floor of the house for delivery, the Agent and two Clerks from the Ticket Office at the Passenger Station, assisted in checking and unloading the cars, covering a period of 4%4 hours, on this date.

"R. R. Gamble is the only employe working at the Freight Station during the 24-hour period, and his duties consisted primarily in checking, trucking, delivering and receiving freight.

"On November 2, 1945, the Division Chairman made claim for payment to R. R. Gamble for 4z/4 hours at time and one-half, on account of Agent giving assistance as shown above."

In substances, the Carrier claims that the Agent as incidental to his supervisory duties was within his rights, in spite of the Clerks' Agreement, when he assisted the regularly assigned Tallyman to perform his work on this day.

The Organization maintains such action not only was an infringement on the rights of the Tallyman, by virtue of the Scope Rule and his seniority, to all of the work of his assigned position, but that such assistance had the effect of denying him overtime that he might have earned had the Agent and two Ticket Clerks not assisted him.

The record contains no detailed description of the Agent's duties, but the Carrier does say-"The Agent by virtue of his position as Chief Supervisory Officer of the Carrier at Van Wert, Ohio, is responsible for the conduct of the Carrier's business in this territory * * * " It would appear, therefore, to be part of his responsibility to take all reasonable and legitimate steps not only to satisfy patrons using the passenger facilities of the Carrier, but also those patrons who rely on the Carrier for freight service. This is one link in the chain of sound business management.

The Tallyman, in spite of his classification and his seniority rights under the Agreement, is not a free lance. He must in the nature of organization be responsible to some superior for conduct and performance on the job and have the right, too, to seek advice and assistance if he needs it. If the term

"Supervisory Agent" used by the Carrier means anything, it would seem to mean that the Agent, among other things, has a supervisory relationship to all of the employes of his station.

Does this relationship give this Agent the right, under the Agreement, to relieve the Tallyman, during his regular assigned hours, of all or any part of his work? It is not contended here that the Agent had a right to relieve the Tallyman of all of his work on September 24, 1945. How much of the Tallyman's duties, then, may the Agent assume without violating the Agreement? The Cleks say none; the Carrier says the equivalent of 4"K' hours, the total time spent by the Agent, who devoted 1% hours of his time during the day to such assistance and 1Ys hours and 184 hours, respectively, by two Ticket Clerks. This appears to have been the total number of man hours of assistance required to enable the Tallyman to complete the task within his regular assigned hours without overtime.

Supporting the Carrier position, Awards 1849, 2373 3508, 4492 4446, 4447 and 4559 have been cited. We have read these and others to which reference is made in these citations, going back to Awards 615, 616, 618 and 639. We have read with care the dissenting opinions attached to Awards that are cited in support of the Clerks' claim here.

The Clerks maintain that-"The Scope Rule is all embracing and contemplates that employees who are available and who have established themselves upon a seniority roster covered by the Rules Agreement shall have the right to perform work assigned to positions under this Agreement."

This is not disputed by the Carrier. What the Carrier does insist is that this rule does not give the exclusive right, in this case, to the Tallyman to all of the work. That is the question here. Does this rule give the Clerks the exclusive right to all of this work, to all the time required to handle the described shipment even if to do it meant overtime for the Tallyman? The Clerks say yes, "since the clerical duties performed by the Agent * * * are a component part of the duties assigned daily to the * * * position (Tallyman) * * * the Agent performed work reserved to Clerks under the current Rules Agreement." The Clerks refer specifically to Award 3877 but also cite nine additional Awards listed in their submission. In addition to these, thirty other Awards have been cited in their behalf for consideration in this case. Among these we find 2009, 2071. 2074, 2587, 2837 and 4197. Award 3877 is persuasive, but among the scores of cases we have read, those cited and others to which these referred, none seems to apply more directly to the case here than Award 4197; nor is the issue more squarely drawn or more boldly stated by any other. There the Agent was charged with "checking freight and handling freight * * * during the period (the Clerk) was off duty on his meal period." It differs from the present case, as we see it, only in the fact that in the case that resulted in Award 4197 there was a special "station forces" Memorandum of Agreement which the Carrier interpreted to mean that any member of the station forces, including the Agent, might perform any of the functions, including clerical or physical handling of freight. In the last paragraph of "Position of Carrier" in that case, immediately preceding "Opinion of Board" we find this statement: "The Agreement (referring to Memorandum of Agreement) was so worded that there would not be any dispute concerning the matter when any member of the station force, be the person an agent, agent-telegrapher, a telegraph-clerk or any other clerk, checked. received, delivered or handled freight at one of the railroad's warehouses."

This statement was before the Board when it made its Award in which it said among other thin gs,-"Benton station was not a one-man station * * * . The checking and handling of freight is clerical work * * *. This (Memorandum of Agreement) is a provision of an Agreement made with the Clerks' Organization and deals only with work which belongs to Clerks." No such nrovisinn or special agreement is involved in the instant case. We cite it only to indicate that in spite of such special agreement the Board, in that case,

found for the Claimant. In that case also we find the Carrier's position stated as follows: "It is my contention that Agent Becton has a perfect right to perform any work at Benton station and assign any work to any clerk or telegrapher which will help him man this depot at Benton,"

We conclude, in the case before us, that whatever the motive, the Agreement was violated when the Agent, outside this Agreement, spent one and one-half hours checking freight, work regularly assigned to the Tallyman. Awards 3877, 4197.

We come now to a consideration of the penalty. Award No. 4571 has been cited as controlling here. There is was said "We have consistently held that the penalty rate for work lost because it was given to one not entitled to it under the Agreement is the rate which the regular occupant of the position would have received if he had performed the work."

When this doctrine is applied to the facts in the instant case we can reach no other conclusion than that claimant is entitled to his claim as made. What are the facts? The Carrier maintained, and reinforced his submission by oral argument before the board, that because of the unusual volume of freight received on the day in question and the imperative necessity for getting it on the freight house floor ready for delivery the next day, it was necessary for the Agent and two ticket clerks to assist the claimant on that day. Their time totaled 4s/4 hours. The claim is for 4%4 hours at the overtime rate. Unloading the freight was the Tallyman's work. Carrier insisted it be unloaded and put upon the freight house floor on the day it was received. If part of the work, to the extent of 4'/4 hours, had not been taken away from claimant and given to others, we are entitled to assume it would have taken him an equivalent amount of time to do it. He worked his full 8 hours. The only alternative would have been an equivalent amount of overtime.

We perceive no conflict with the doctrine stated in Award 4571. That do,trine and our conclusion based on the facts here, are amply sustained by Awards 3271, 3288 and 3371.

In reaching our conclusion we have not overlooked another statement in Award 4671 that bears upon penalty rate: "Examination of our awards upon the sub ect show that we have adopted the theory of payment of a penalty by the Carrier for its violation of the Agreement instead of the theory of compensation to the claimant for his loss if he had worked."

Except as set forth in schedule agreements there seems to be no clearly defined penalty for violations except as they have been determined empirically and tempered by the wisdom of the Board. We perceive no confliA with that theory in our conclusion. The penalty, whether or not it happens to coincide with what the employe is justly entitled to under his Agreement (Awards surpra) should not be less than that, It might be more; that is a matter for the judgment of the Board in each such case. Claimant here asks only what was denied him by Carrier's action and only what the Board has allowed other claimants under precisely the same set of facts.

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 violated the Agreement.

AWARD