performing work which, in the Auditor of Revenues' opinion, was most closely analogous to the work of the temporary positions. In prescribing such rate, the Auditor of Revenues followed the provisions of Rule 13 (d), reading as follows:

"The rates for new positions shall be in conformity with the rates of analogous positions in. the seniority district where created or in comparable localities and shall be established by agreement between the Management and the General Chairman."

Every effort was made to reach an agreement with the General Chairman to establish a rate, but, because of the refusal on the part of the Brotherhood representatives to enter into any negotiations concerning a rate, there was no alternative but to apply the rate which in the Auditor's opinion was fair and equitable to the employes involved and to the Company. In this connection, the Carrier emphasizes that while Rule 13 provides for establishment of a rate for a new position by agreement, it does not require concurrence by the Organization in the establishment of a new position. The right to establish new positions is a right belonging exclusively to Management and the Agreement nowhere limits this right.

Under the foregoing circumstances the Carrier submits that its handling of the matter was not in violation of any of the rules of the agreement, and that it was put to considerable embarrassment and difficulty by the unjustified position taken by the Organization representatives. Moreover the Organization has not complied with Rule 44 covering "Claims for Money Payments". This rule provides that claims for money payments "may be made only by the employe or a `Representative' as that term is defined in Rule 3 of this agreement, on his behalf and must he presented in writing, to the employe's immediate superior within ninety days from date the employe received his pay check for the period involved or the basis of the claim occurred." (Emphasis supplied). This rule has not been followed in Items 3 and 5 in the claim submitted, in that the claims are general and not specific. The employes allegedly entitled to overtime are not designated or mentioned. Here again we have a rule presumably negotiated in good faith in order to establish an orderly procedure for handling of claims, but its terms have been disregarded, and accordingly the claims are defective and should not be considered.

With regard to the positions temporarily vacated by Messrs. Campbell, Fessler and Murray, the Board has held in Award 792, covering a dispute between the Clerks Organization and this Carrier, involving a similar claim, that the terms of the Agreement were not violated by failure to fill such positions. Moreover, the Organization is here claiming a double penalty; that is, pay for time not worked at penalty rates. Such a penalty has not been awarded where claimants did not perform the work: see Awards 2346, 3232, 3444.

The Carrier maintains that there has been no violation of the Agreement; that the claims are not supported by the rules and therefore that the same are without merit and should be denied in their entirety.

(Exhibits not reproduced.)

OPINION OF BOARD: On December 17, 18 and 19, 1947, Carrier's Auditor assigned tentatively Eugene Murray, George Fessler and Clifton Campbell, each regularly assigned and senior clerk in their respective bureaus, to work on the preparation of a special non-recurring statement. Robert Dunbar, the majority of his regular work being similar to the preparation of such statements, was assigned on the same date to supervise this work. The three employes, Messrs. Campbell, Fessler and Murray, declined to work on the statement after December 19, 1947, and returned to work at their regular positions, Claimant Dunbar continued working until January 10, 1948. On December 22nd the Carrier posted a bulletin advertising four temporary positions of clerks at the rate of $10.51, to prepare the special statement. Two

clerks applied for the temporary positions and to fill the two remaining temporary positions the two senior group two employes were assigned and these four worked at this work from Dec. 26, 1947, until January 17, 1948, when the work was completed.

The Employes contend that it was the practice of the Carrier to have the regular employes perform all special statement work on an overtime basis and the Carrier denies this practice. This Board has stated in former awards that prior practice established by either party cannot change the rules of the Agreement. We can find no rules in the Agreement to substantiate the Employes' contention that all special statement work must be performed by regular employes at overtime.

In Claim 1 there is no dispute to the fact that the Carrier assigned Claimants Campbell, Fessler and Murray away from their regular positions to work on the special statement on December 17, 18 and 19, 1947, and that their positions were not filled. It is also admitted that Claimant Dunbar was removed from his regular duties to work on the special statement, and he so worked until Jan. 10, 1948. The Employes contend that these four employes were suspended from their regular duties on the days in question to absorb overtime they or other employes otherwise would have performed, and the Carrier's action was a violation of Rule 7 (d), citing Awards Nos. 3301, 4352, 4499, 4500, and others. We are of the opinion that the facts in this case are substantially in accord with the authorities cited and it follows that Claim 1 must be sustained. Regular assignments should not be disturbed except as a last recourse, and in this case another and proper method was available to Carrier as will be seen in the following discussion.

Dealing particularly with Section 2 of the claim, the Claimants allege that the Carrier violated Rule 27 when it bulletined fr the four temporary positions who performed the special statement work, i.e. Bulletin No. 907, Employes' Exhibit "A". In Rule 27 there is a specific exception to bulletining for positions of 30 days or less duration and the Employes contend that when the Carrier posted the bulletin in question for a position of less than 30 days' duration, it violated the agreement. The Board is of the opinion that the clear meaning of this exception to Rule 27 does not forbid the Carrier to publish such a bulletin, but merely states it is not required. The Carrier states it was a notice in the form of a bulletin to advise employes with seniority preference of this temporary position, though such action was not required. This was in compliance with Rules 31 and 32 that senior qualified employes should have preference on such temporary positions. We can find no violation of the Agreement when the Carrier bulletined these four new temporary positions, and its action was in accord with the provisions of the Agreement relating to such temporary positions to do special non-recurring work. Claim 2 will be denied, as will Claim 3 which is the claim for compensation based on Claim 2.

Claim 4, which is the compensation claim for violation of Claim 1, will be sustained at pro rata rate. However, Claim 5 must be denied in accordance with this Board's constant rulings that it will not order double penalty awards.

FINDINGS: The Third Division of the Adjustment Board upon the whole record and all the evidence, finds and holds:

That both parties to this dispute waived oral hearing thereon;

That the Carrier and the Employes 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

That the Carrier violated the Agreements as per Opinion.

AWARD