OPINION OF BOARD: Petitioner states: "The dispute between the parties concerning Rule 38 hinges solely on the question as to whether or not T. J. McCurry was properly employed by the Company. As stated above, your petitioner contends that his employment was in violation of Rule 39. If this is the case then his assignment to road service on April 26, 1952, constitutes a violation of Rule 38. If, on the contrary, there was no violation of Rule 39, it would follow that there has been no violation of Rule 38. * · *"

From the above It becomes immediately apparent that our task here is to determine whether there was a violation of Rule 39. That part of Rule 39 which the Organization contends was violated in the instant case reads as follows: "The intention under this Rule is to allow conductors working on the extra board an opportunity to average as nearly as possible full time before additional conductors are recalled from furlough, obtained by transfer, or employed." (Emphasis ours).

The Organization admits that "The intent of Rule 39 is clearly stated, namely, to refrain from adding additional extra conductors to the extra board until the extra conductors already employed are earning approximately an average of a full month's average basic wage."

In its original submission the Organization seems to argue that the intention under this rule is to allow conductors working on the extra board an opportunity to average over 100% of their basic monthly rate before employing additional conductors, ignoring the qualifying phrase "as nearly as possible."

Rule 39 also provides "On the 15th day of each month the earnings (dollars and cents) of conductors working on the extra board during the preceding month shall be averaged." This was done here and the average for March was 99.7 of their monthly basic pay.

The Organization further contends that he Carrier, in view of the average being based on the preceding month, cannot anticipate requirement as to need of additional conductors and hat since McCurry was employed on April 13 the rule was violated.

However, at the hearing when the local chairman was asked "Does Rule 39 of (or) any other rule in the Agreement prohibit Management from hiring additional conductors when, in their judgment, they are needed?" and he replied "No" but added in this case "it was fouded on a mighty faulty ,idea."

If the local chairman had in mind that Carrier could not anticipate on April 13 what he records would show for March on April 15 it is safe to say that the figures for March (99.7) were known by the Carrier on the 13th.

That the local chairman thought that the Management's idea was faulty is no evidence that a rule was violated.

Since we are satisfied that the Carrier did not violate Rule 39, it follows on the Organization's own premise that Rule 38 was not violated-hence we give no further consideration to that.

We conclude that the Carrier did not violate the Agreement and the claim must be denied. See Award 6833 involving same parties and rule.

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 the Company did not violate the Agreement.

AWARD