The principle of denying penalty payments unless an agreement rule provides for such payments is quite clearly set forth by Referee Simons in his findings in connection with Award 5401 of the First Division of your Board, in which he states:

"In the absence of rules clearly establishing the right it will not be held that the carriers and employes contracted to pay and to be paid two days' pay for one day's work."

That principle, although worded differently was followed by the First Division in Awards 5402, 6758, 8251, 10351 and 10812. The same reasoning underlies the decision reached in its Awards 5080 and 12245.

Carrier submits that there is no basis for the instant claim and same should be denied.

Evidence and arguments presented herein have been made known to the employes.

(Exhibits not reproduced).

OPINION OF BOARD: We here concern ourselves with the claim of one J. W. Gregg that the Carrier should have used him to fill vacancy on position designated as Number 210 and a request that he be compensated for the period the alleged violation continued, namely May 21, 22, 23, 24 and 25, 1948.

Claimant held regular assignment as Crew Dispatcher (Position 110), assigned hours 8:00 A. M. to 4:00 P. M., with Sunday as rest day, in Crew Dispatcher's Office, East Youngstown yard district. The vacancy, that is Position 210, had assigned hours 4 P. M. to 12 Midnight, and it is mutually acknowledged that on the date in question there were no furloughed or extra employes available to fill this vacancy and that Respondent used a relief employes available to fill this vacancy and that Respondent used a relief clerk to fill same, who was, in so far as seniority was concerned, junior to claimant.

While under the Agreement of January 19, 1923, provision was made (Rule 10) for the filling of established positions on a temporary basis, no mention was made as to the method to be used in assigning extra employes. The parties executed a Memorandum of Agreement, effective February 1, 1945, which in a sense modified Rule 10, whereby furloughed or extra employes were given priority to assignment on the first thirteen temporary vacancies on regular assignments (all others going to regular assigned employes) during each pay period. The Memorandum of Understanding of January 26, 1945, concerned itself with future assignments of regular employes required to double over. The presently effective Agreement, that is the one bearing date of September 1, 1946, included an addendum or note to Rule 28, which is in substance identical with the first mentioned Memorandum.

The Organization asserts that Rule 28, as presently constituted (including the addendum or notes thereto), constitutes an exception to Rule 10 (a) and (b), and that inasmuch as there were no furloughed or extra employes available, the claimant, as the senior regularly assigned employe in the Crew Dispatcher's Office at East Youngstown yard, was entitled to be doubled over to fill the temporary vacancy on Position 210.

The Respondent takes the position that the Board should not consider this claim inasmuch as the Organization, in waiting four years to present the same, was dilatory to the extreme and, further, that Rule 10 is a special rule, providing for the filling of temporary vacancies, and, as such, is controlling over Rule 28, when each is examined in liht of existent facts of record.

Rules 10 (a) and (b) and Rule 28 read as follows:

"RULE 10

TEMPORARY APPOINTMENT

"(a) When filling vacancies of less than thirty days' duration, the senior qualified employe at stations, offices or departments, where vacancies exists and who desire the position, will be assigned.

"(b) When filling bulletined positions pending an assignment, the senior qualified employe at stations, offices or departments desiring same will be assigned, and in the event bulletin fails to develop an applicant with sufficient fitness and ability, the position may be filled without regard to these rules."

"RULE 28

OVERTIME ON OTHER THAN REGULAR ASSIGNMENTS

"Where extra, relief, or furloughed men are not available, employes required to double over on regular positions or bulletined positions, which may be unassigned due to no bids having been received, shall be assigned on the basis of seniority and qualifications, regardless of their rest day, and when so assigned will be entitled to eight (8) hours' pay at not less than his own rate or the higher rate of the position required to be filled.

.,>t r e

"NOTE 2: Extra employes and employes furloughed from the regular roster will be given prior consideration to temporary vacancies over regular assigned employes to the extent of thirteen (13) assignments in each pay period, after which all other temporary assignments shall be assigned to regular assigned employes, if qualified, on seniority basis.

Temporary assignments which are not filled by regular employes for reasons of regular employes not being available, or where regular employes decline assignments, or in cases of emergency where regular employes cannot be reached, such temporary vacancies shall then be assigned to extra employes, if qualified, regardless of their pay period of thirteen (13) assignments referred to in Paragraph 1 of Note 2.

This does not guarantee six (6) days work per week to extra clerks; further, if and when extra clerks perform more than one assignment in any twenty-four hour period, extra clerks will be paid at the straight time rate; however, if required to work overtime on a single assignment, such overtime will be paid at punitive rate."

Respondent's contention that the delay of the Organization in presenting this dispute to the Division should preclude any action thereon, except dismissal, is without merit. The Railway Labor Act contains no limitation provision and the effective Agreement between the parties cont ains no such limitation or cut-off provision. The Carrier has suffered no monetary loss because of the delay of the Organization. The effect of adopting the Respondent's contention would be to place a new rule in the Agreement. This we are not empowered to do. See Awards 3444, 5859 and 5920 of this Division.

It is apparent that the question to be resolved is whether or not the Memorandum in question, and its resultant inclusion as a Note to Rule 28,

had the effect of nullifying or exempting the letter and intent of Rule 10 (a) and (b) when applied to conditions such as those with which we are here concerned.

If it did, the claim here is valid. If not, the claim is without merit.

Rule 10, as initially constituted, pertained to the filling of vacancies of less than thirty days duration. The Memorandum of Agreement, effective February 1, 1945, had the effect of giving furloughed and extra employes priority to the first thirteen vacancies during each pay period. It was the intent of the Memorandum of Understanding of January 26, 1945 to describe how employes who "doubled over" would be assigned.

An analysis of Rule 10 discloses that Paragraph (a) concerns the filling of vacancies of less than thirty days, while Paragraph (b) concerns the filling of bulletined positions on a temporary basis pending regular assignment; however, the application and/or coverage of the rule is not automatic. Under ordinary circumstances the proper method of procedure thereunder is .for the Carrier to inform the employe affected of the vacancy when one exists, and ascertain if he desires to fill same.

On the basis of seniority, the claimant was senior to the relief clerk who filled the vacancy in question. Inasmuch as there were no furloughed or extra employes available at the time and place in question, had the Claimant, knowing of the vacancy, expressed a desire therfor he would have been entitled to same. This he did not do.

Rule 10 (a) and (b), and not Rule 23, controls the facts at hand. This claim is without merit.

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 Enploye 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 did not violate the Agreement.

AWARD