(4) That the Carrier shall be required to reimburse Raymond L. Tanguay and other employes who may have been subsequently and similarly assigned on the sixth day (Saturday) of Mr. Hourihane's position for the difference between the wages they actually received and five days per week at rate of pay of $11.036 per day retroactive to and including Saturday, September 10, 1949, (plus any subsequent general wage increases applicable to said position).

EMPLOYES, STATEMENT OF FACTS: Effective September 1, 1949, the Carrier established a five-day work week for Stephen D. Hourihane holding position of Baggageman at Somersworth, New Hampshire, with assigned days of service Monday to Friday inclusive, with Saturday and Sunday as his days of rest. However, since the nature of the work of the position was such that an employe was needed six days each week, namely, Monday to Saturday inclusive, the Carrier hired Raymond L. Tanguay and assigned him to cover the work of Mr. Hourihane's position on the sixth day (Saturday), regularly, effective Saturday, September 3, 1949. Prior to the employment and assignment of Mr. Tanguay this man neither came within the Scope of the Agreement between the parties now held any seniority rights thereunder. Mr. Tanguay was not otherwise employed by the Carrier except to cover the aforesaid assignment.

CARRIER'S STATEMENT OF FACTS: Effective September 1, 1949, the Carrier, as required by the National Forty-Hour Week Agreement of March 19, 1949, established a five-day week position as Baggageman at Somersworth, N. H., which was assigned to Stephen D. Hourihane. As there was need for a Baggageman at Somersworth on six days a week, an unassigned man was called to fill the position which was not a part of any assignment. Hourihane worked Mondays to Fridays inclusive and the spare man worked Saturdays.

CASE NO. 2

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes-

(1) That the Carrier violated and continues to violate the Agreement between the parties, effective May 14, 1948, as amended by Memorandum of Agreement effective September 1, 1949, when, in establishing a five-day work week, effective September 1 1949 Tuesday to Saturday, inclusive, with rest days, unday and Monday, for the position of Baggageman at orth Berwick, Maine, rate of pay $11.228 per day, held by Frank E. McCrillis a position upon which the nature of the work is such that an employe is needed six days each week, Monday to Saturday inclusive; the Carrier refused and continues to refuse to either combine the duties of this position on the sixth day (Monday) with that of a regular five-day relief position, or to permit the regular occupant of the position, the said Frank E. McCrillis, to perform said work of this position on the sixth day (Monday), but instead hired and assigned Wayne M. Wormwood, an employe who neither came within the scope of the Agreement between the parties nor held seniority rights as a Baggageman, to cover said position of Frank E. McCrillis on the sixth day (Monday), effective Monday, September 5, 1949.

(2) That the Carrier shall now be required to combine the duties of this position on the sixth day (Monday) with that of a regular five-day relief position, or permit the regular occupant of the position, the said Frank E. McCrillis, and any other employes who may have been subsequently assigned to the position, to perform said work of this position on the sixth day (Monday) and compensate the said Frank E. McCrillis, and any other employes therefor in accordance with the provisions of the Rules Agreement between the parties.

(3) That the Carrier shall be required to reimburse the said Frank E. McCrillis and any other employes who may have been subsequently assigned

The Carrier has shown:

1. That the claims are not supported by any rules cited by the claimants.

2. That the Carrier, in each case, acted in strict conformity to the rules.

3. That the claims of the incumbents of the regular five-day assignments are not properly before the Board.

4. That many of the claims for spare employes are not properly before the Board.

5. That an afrmative award is not justified in any case.

(Exhibits not reproduced.)

The Carrier in establishing 40-hour work week assignments, caused the rest day work of the positions hereinafter described to be performed in the manner set forth in the following statements of the twelve claims made. The Organization contends that the relief work in question was not assigned in accordance with the 40-Hour Work Week Agreement and this affords the basis for the claims. We shall describe, discuss and decide each case by the number assigned to it by the parties in their submissions.

CASE NO. I

OPINION OF BOARD: Baggage work was regularly assigned at Somersworth, New Hampshire, to S. D. Hourihane. He was assigned Monday through Friday with Saturday and Sunday as rest days. The Saturday relief work was performed by one Raymond L. Tanguay who was not used at this point after December 20, 1949. The position was a six day position within the meaning of the 40-Hour Work Week Agreement for the reason that the nature of the work was such that employes were needed to protect it six days each week. Rule 17'/2 (c), Current Agreement. The regular assigned employe, Hourihane, was correctly assigned Monday through Friday, with Saturday and Sunday as rest days in accordance with Rule 17%2 (c). See Awards 5555, 5556, 5557. The Saturday work was performed by Tanguay, who was not previously an employe of the Carrier, never was within the scope of the Clerks' Agreement prior thereto, and was not otherwise employed by the Carrier other than on this Saturday rest day work.

It is the contention of the Organization that this Saturday work must be included in a regular five day relief assignment or permit the occupant of the regular assigned position (Hourihane) to work it at the time and one-half rate. On this contention we point out that after regular positions existing prior to the effective date of the 40 Hour Week Agreement have been reduced to a five day assignment, in accordance with that Agreement, the work necessary to be performed in addition thereto must be assigned under the provisions of Rule 171/z (e), which provides:

take the starting time, duties and work locations of the employe or employes whom they are relieving."

The record shows that the Carrier created as many regular relief assignments as were possible that would in any manner affect the position at Somersworth here involved without violating other provisions of the Agreement. After so doing there was one Saturday rest day to be worked at Somersworth, Saturday rest days at Rochester, New Hampshire, and Biddeford, Maine, Monday rest days at North Berwick, Maine, and Durham, New Hampshire, and Saturday and Sunday rest days at Dover, New Hampshire. The distances between these points varied from 5.4 miles to 21.7 miles. It is the tag end work which was left over at these points which constitutes the basis of several of the cases (1, 2, 4, 5, 6, 7) contained in this docket.

quite evident that the Carrier could not assign a regular five day relief employe at these points, assuming that distances were no bar, for the reason that there were but three days (Saturday, Sunday and Monday) of the week in the same seniority district to be filled under the assignments as made. The Carrier could not, except by agreement, change the rest days on the six day positions from Saturday and Sunday or Sunday and Monday. Under these circumstances the work is correctly described as unassigned work. It will then be assigned pursuant to Rule 17(f), which provides:

"Where work is required by the Carrier to be performed on a day which is not a part of any assignment, it may be performed by an available extra or unassigned employe who will otherwise not have forty hours of work that week; in all other cases by the regular employe."

(fide think the Carrier is in error when it states that "an available extra or unassigned employe" as used in Rule 17(f) includes a person who had no seniority standing under the controlling agreement prior to September 1, 1949. Clearly this provision means that an employe holding seniority who is not working, or one who has worked less than 40 hours of work that week, shall be used before the regular employe can claim the work as his at the rest day rate This identical question was determined by this Board in Award 5240. The hiring of persons without any seniority rights for less than five days per week to perform relief work belonging under an agreement because the work was not a part of an assignment under Rule 17(f) could, if sustained, cause serious injury to the rights of employes holding seniority under a collective agreement. No such result was intended by the 40 Hour Week Agreement. To permit persons "off the street" to do such work poses such a grave question involving the value of collective agreements that this Board will sustain it only when the controlling agreement so provides or, in the case before us, if the Emergency Board responsible for the drafting of the 40 Hour Week Agreement interprets it to mean otherwise by a formal interpretation of the intended meaning of the language used. If it was the intention of the parties in drafting the agreement to permit the use of persons holding no seniority rights to perform relief work covered by Rule 17(f), the English language contains adequate words to have plainly expressed such an intent. The language used clearly expresses an intent contrary to Carrier's interpretation of the rule. We hold therefore that Rule 17(f) was violated when a person holding no seniority under the Clerks' Agreement on September 1, 1949, was used on any of the Saturdays of the six positions here involved.

The Organization asserts that Carrier should be required to combine the work of this position on the sixth day (Saturday) with that of a regular five day relief position or permit the regular occupant of the position to work it at the rest day rate. As we have hereinbefore pointed out, there are only three days (Saturday, Sunday and Monday) in the manner in which they were assigned that could be included in a regular relief assignment at Somersworth Rochester, Biddeford, North Berwick, Dover and Durham, assuming that distances and traveling conditions do not reasonably bar such an assignment. All of the regular assignments at these points have been

made in accordance with the 40 Hour Work Week Agreement. Consequently if a regular assignment is to be established, there must be changes made in the rest days of two or more regular assignments. This can only be done with the concurrence of the Organization as provided in Rule 171/2(g). This rule provides that the typical work week is to be one with two consecutive days off in seven and that it is the obligation of the Carrier to provide this. But where an operating problem is met which affects the consecutiveness of the rest days of positions or assignments covered by paragraphs (c), (d) and (e), the procedure for handling is thereafter set out. It seems to us that if a regular assigned relief position is to be established at these five named locations, the operating problem involves positions falling under (c) and (e) and the procedure for their solution is set forth in Rule 171/s(g). Paragraph (1) of Rule 17i/z(g) reasserts that all possible regular relief positions shall be established as required by Rule 17~/2(e). Paragraph (2) of Rule 171/2(g) then provides:

"Possible use of rest days other than Saturday and Sunday, by agreement or in accordance with other provisions of this Agreement."

On the other hand, if it be asserted that a regularly assigned relief position could have been established by changing the rest days of a seven day position at Dover or Biddeford, it must be shown that such a position could reasonably have been set up under the conditions here existing. While the provisions of Rule 17'%(e) require the establishment of all possible regular relief assignments, they must be in the same seniority district and be reasonable as to distances of work locations, available transportation facilities, the time required to move from one work location to another, and any special circumstances connected with such an assignment. No showing is here made that would warrant this Board in directing the establishment of a regular relief position. It seems to us, in any event, that the establishment of such a position should be given consideration by the parties, and, if agreement does not result because of the arbitrary or capricious conduct of either or both of the parties, this Board, with the record thus made before it, might have a basis for determining whether the Carrier had failed in its obligation to establish all possible regular relief positions.

The record is replete with evidence showing a disagreement as to the respective duties of the parties under this provision. It is the duty of the Carrier ordinarily to interpret an agreement in the first instance and put it into effect. The Organization ordinarily must resort to protest or the making of compensatory or penalty claims to secure what it believes to be a proper application of agreement rules. But where the collective agreement requires the agreement of the Carrier and the Organization to carry out the intent and spirit of the agreement, such provisions do not fall within the general rule that the Carrier must unilaterally interpret them and put them in effect. They involve mutual agreement and, necessarily, mutual responsibilities. The Agreement contemplates that the talents of both parties shall be used in the securing of such agreements necessary to the establishment of "all possible regular relief positions." The duty rests upon the Carrier to suggest possible use of rest days other than Saturday and Sunday on regular assigned positions to permit the establishment of a regular relief assignment as contemplated by Rule 171/2 (e). On the other hand, the Organization has a similar responsibility to suggest such variances from the rules generally applicable. A stalemate resulting from the failure or refusal of either to take the first step is not consistent with the spirit of the Agreement. Neither does the Agreement contemplate a whimsical refusal to agree to reasonable changes of rest days in regular assignments necessary to the establishment of an additional regular relief position. In the present case neither party performed its duty in this respect on the property even though both assert their willingness to do so in their presentations to this Board. If either of the parties had suggested specific changes of regular assignments to the other which were ignored or declined without reasonable justification, the Board would have had something upon which it could act. But the parties cannot as here, create an impasse by their own non-action and obtain relief against the oter. To so do would be to grant relief to one party because of a condition arising out

of his own dereliction of duty. In other words, under a situation such as we have here, a Carrier will not be directed to establish a regular relief position where changes in regular assignments must be agreed upon, unless specific suggestions have been made which are reasonable and necessary, and which have been arbitrarily refused by the Carrier. On the other hand the Carrier will not be permitted to escape its responsibilities with impunity where the situations are reversed. It is pointed out that two of the positions involved are seven day positions and as such the Carrier may assign any two consecutive rest days as the rest days of the occupants of the positions under Rule 17%(d). In this respect, the Carrier is obligated without conference or agreement with the Organization to fix such rest days in such a manner as to permit the establishment of a regular relief position if it is possible to do so. The record here before us does not show the hourly assignments of the occupants of the positions on which relief is required. We are unable to determine, therefore, if a regular relief position could be established to be worked in several of these named locations. If the daily hourly assignments are such that a regular relief position could be established by changing the rest days of either or both of the seven day positions or by otherwise complying with Rule 171/2(e), the Carrier is obligated by that rule to do so. The claim that a regular relief position should be established to be worked at some of the points here named is denied without prejudice.

Claim is here made in behalf of the person used on the Saturday work at Somersworth on the theory that his assignment to work Saturdays was a regular assignment and therefore within the guarantee rule. The contention of the Organization in this docket has been that Tanguay was not an employe of the Carrier at all. If this be so, he has no rights under the Clerks' Agreement and is in no position to assert the rules thereof in his own behalf. But assuming that he was an employe with rights under the Clerks' Agreement, he has no basis for a claim. He is not the occupant of a regular assigned relief position. Such a position must be assigned five days each week, eight hours per day. The fact that he worked a Saturday rest day of a position regularly does not change its character as relief work, nor does it make it a regular relief position wrongfully assigned for less than five days. Award 5463. The guarantee rule provides:

"Employes who have regular positions and are a part of the regular force and who do not lay off of their own accord will not be paid less than five days per week except as provided in Rules 21, 26 and 27." (Rule 11(e), current Agreement.)

The exceptions therein stated have no relation to this dispute. The guarantee rule applies only to regular assigned positions, including regular assigned relief positions. Decisions Nos. 1, 3 Forty-Hour Week Committee. The Saturday work here involved was not bulletined nor otherwise treated as a regular assigned position. The contention of the Organization that all employes assigned to relief positions who were assigned to relieve the same employes on the same days and hours each week, came under the five day guarantee rule is without merit. The difference between a relief assignment and a regular assignment, relief or otherwise, is grounded on more considerations that the Organization has advanced.

The Carrier asserts that monetary claims were not handled on the property as required by Rule 39(a), Current Agreement, which provides:

"Claims for compensation of any nature will not be valid unless presented in writing to immediate superior officer within sixty (60) days after the cause of claim."

We point out this dispute was jointly submitted by the parties. The monetary claims were plainly set forth therein. The Carrier without reservation joined with the Organization in submitting the issues. Under such a situation, neither party is in a position to assert irregularities of procedure.

They are waived when the parties agree upon the issues to be submitted by joining in the submission without reserving procedural irregularities in the agreed upon statement of facts for the consideration of this Board. Awards 3891, 3256.

Lastly, the claim of the occupant of the regular position at Somersworth will be sustained at the pro rata rate. It not appearing that an extra or unassigned employe who would otherwise not have forty hours of work that week was available to do the work, the regular employe should have been assigned. The penalty for work lost is the pro rata rate of the position under the current awards of this Board.

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 violated.

AWARD