Provided, That no operator, train dispatcher, or other employe who by use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements shall be required or permitted to be or remain on duty for a longer period than nine hours in any twenty-four hour period in all towers, offices, places, and stations continuously operated night and day, nor for a loner period than thirteen hours in all towers, offices, places and stations operated during the daytime, except in case of emergency, when the employes named in this proviso may be permitted to be and remain on duty for four additional hours in a twenty-four hour period of not exceeding three days in any week."

In the instant claim, the 3rd trick telegrapher, who failed to report for duty on his assignment, 12:01 A. M. to 8:00 A. M., January 18, 1948, was not absent by reason of illness.

Investigation developed that the 3rd trick telegrapher, who failed to report for duty or to call in and furnish his supervisor with information to the effect he would not report, failed to report by reason of his alarm clock not awakening him, resulting in his oversleeping. As soon as it was definitely known that the 3rd trick telegrapher would not report, the position was blanked.

It is, therefore, the position of the carrier that no emergency existed in the station at Coyote that would have justified working the claimants in excess of eight (8) hours on January 18, 1948, in violation of the Federal Hours of Service Act. If the carrier had worked said claimants it would have been subject to a penalty under the Act. Since the claimants performed no service outside the hours of their assignment, there is no basis or agreement support for their claim for four (4) hours each at overtime rate, January 18, 1948.

Carrier asserts that it has proved beyond a reasonable doubt that neither the agreement provisions nor Award 3631 cited by the petitioner support the instant claim and respectfully requests the Division to so find and deny the claim.

(Exhibits not reproduced.)

OPINION OF BOARD: The regularly assigned telegrapher-clerk at Coyote, California, a station operated continuously twenty-four hours a day, seven ays a wee, whose assigned hours were 12:01 A. M. to 8:00 A. M., failed to report for duty on January 18, 1948 because he overslept. The Carrier blanked the position for that shift, and the regularly assigned telegrapher-clerk, hours 8:00 P. M. to 12 :00 idnight, claims four hours at time and one-half because the Carrier refused to use him, 12:01 to 4:00 A. M., and the telegrapher-clerk, regularly assigned 8:00 A. M. to 4:00 P. M., likewise claims four hours at time and one-half because the Carrier did not assign her the work on that day from 4:00 A. M. to 8:00 A. M.. both on a call basis. The claimants worked their regular assignments and were paid in accordance with the Agreement.

The rules cited by Petitioner have not been violated. No person not covered by the Scope Rule (Rule 1) was employed; no person was assigned work in violation of the Seniority Rule (Rule 2); the claimants have been paid in accordance with the Guarantee Rule (Rule 5); claimants did not work overtime (Rule 14); nor were they suspended from their work during regular hours (Rule 15); and they were not required to work after being releasell (Rule 16). The work at this station was light on this particular day, and no emergency existed. Such being the case, if the claimants had been required to work four hours beyond his regular assignment and before commencing her regular assignment, the Carrier would have subjected itself to penalty under the "Hours of Service Law". Further, the rules cited do

That both parties to this dispute waived oral hearing thereon;

The facts of record do not show a violation of the current Agreement.

AWARD