of signalmen's agreement rules. Further, while D. W. McDowell was employed there was no complaint that he was not being properly compensated. It was not until the Local Chairman wrote the Supervisor Communications and Signals in respect to the case under date of November 27, 1948 (almost a month after the termination of McDowell's employment) that Communication and Signal Department officers had any intimation that the organization contended that McDowell had been improperly compensated and that a claim was being presented.

There is an agreement in effect between the parties to this dispute bearing effective date of July 1, 1939.

POSITION OF CARRIER: It is the position of the carrier that there is no justification for claim presented in favor of D. W. McDowell, nor is such claim supported by any rules contained in agreement between the carrier and the brotherhood, and accordingly should be denied. We base our position on the following facts:

(a) McDowell at the time of employment was advised definitely as to basis of compensation, i.e., that he would be compensated at the prevailing hourly rate and in line with compensatory rules applicable.

(b) McDowell was not assigned to perform road work in a district the extent of which was such that he did not return to headquarters daily, neither was he away from headquarters several days at a time as is contemplated under provisions of rule 59(a), signalmen's schedule.

(c) At no time during McDowell's period of employment did he or anyone else make claim for assignment and compensation in line with provisions of rule 59(a).

(d) No claim was made in behalf of McDowell until approximately thirty days subsequent to termination of his employe relationship with the carrier.

The sole question for this Board to decide is whether on basis of the duties assigned to and required of McDowell he was assigned to "perform road work in a district the extent of which is such that the employe does not return to headquarters daily, and who may be away from headquarters several days at a time, which may include Sundays and holidays." The fact that McDowell was assigned to help a signalman assigned to the above type of position and compensated at a monthly rate in line with the provisions of Rule 59(a) does not automatically classify McDowell's position in the same category as the employes' representative would have this Board believe. As indicated in the carrier's statement of facts, McDowell was not required to accompany a monthly rated traveling mechanic for emergency calls, etc., nor was he required to absent himself from the home point, Huron, South Dakota, as contemplated for position compensated under provisions of rule 59(a), signalmen's schedule.

OPINION OF BOARD: The only rule alleged to have been violated by the Carrier in the statement of claim is Rule 59 (a).

"Rule 59 (a). TRAVELING ASSIGNMENTS, MONTHLY RATED EMPLOYES. An employe regularly assigned to perform road work in a district the extent of which is such that the employe does not return to headquarters daily, and who may be away from headquarters several days at a time, which may include Sundays and holidays, such as positions now assigned with headquarters at Huron, Fremont, Norfolk, and Chadron, unless materially changed by the permanent assignment of additional signalmen in the district, will be paid on a monthly basis and position classified as a traveling assignment. The monthly salary to be determined by multiplying

the hourly rate of the class by 3156 hours (8 hours daily except Sundays and holidays-12 hours on Sundays and holidays) divided by 12, which salary will cover all service performed. No time will be deducted unless the employe lays off of his own accord, and when made will be on basis of days absent or not available, pro rated on basis of calendar days in the month."

The claimant, a signal helper, was paid on an hourly basis. The signal maintainer at Huron, South Daota, was paid on a monthly basis under Rule 59 (a). The caim is that the helper should also have been compensated on a monthly basis. The Carrier states that the claimant was not assigned to perform road work and he was not away from headquarters several days at a time, including Sundays .and holidays. The Carrier states that during the two-month period in question, the records show that the claimant, who was on an hourly basis, did not receive any overtime payments. The Employes do not controvert this evidence. No provisions of the Agreement have been cited which would prevent the Carrier from assigning a signal helper to perform work on an hourly basis. The weight of the evidence is that the signal helper was not required to do any work outside of his regularly assigned hours or days, even though the signal maintainer was required to perform services outside of the signal helpers' assigned hours. The determination of the Board in construing Rule 59 (a) must be made on the basis of the duties actually assigned to the signal helper. The Board cannot find that violations of Rule 38 (a) with reference to the bulletining of positions, and Rule 42 (b), requiring a characteristic notice, are pertinent to the question as to whether the position of signal helper in this case comes under Rule 59 (a). The only relevant evidence is the nature of the work required of and performed by the incumbent. The claim refers only to a violation of Rule 59 (a).

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 Agreement was not violated.

AWARD Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division