senior employe off on rest days to fill a short position or vacancy, or to acquaint this employe with the fact that a vacancy exists on his rest day.

If the intent of this rule were that the carrier has an obligation to advise all employes of all short vacancies, the rule would simply provide that all vacancies will be advertised. This the rule does not provide. The regulation is that only vacancies or new positions of more than thirty days duration will be advertised, thus making it clear that employes desiring vacancies of less than this duraion are obligated to make their wants known to the carrier.

The situation on May 29, 1952 was that a regularly assigned employe scheduled to start work at 6:30 A. M. on a position rated at $12.89 expressed a willingness and desire to step up under Rule 10 onto a position constituting a promotion to her, going on duty at 12:00 Noon and rated at $15.13 per day. This she had every right to do and the carrier did not violate Rule 31 in permitting her to do so. The organization cannot dispute the fact that Rule 10 has operated constantly in the past and continues to operate at all times to permit a regularly assigned employe to "suspend" his regular assignment while occupying a temporary job under Rule 10.

Mr. Ando's only claim, as we see it, is that he should have unseated the regular employe his junior who had declared for the job. Assuming, without acknowledging that Mr. Ando had the right to do this, thus taking over a short vacancy on his rest days after having worked five days in his work week and in view of Rule 25 (2) (a) of the agreement, his only claim would be that he missed the opportunity to work a straight time day in the exercise of seniority. No rule of the agreement permits employes to exercise their seniority under Rule 10 to work an overtime shift when no overtime shift is required and none has been authorized. It is fundamental that any employe electing to take a position assumes the conditions of that position.

(7) Without prejudice to the position of the Carrier that any claim in this case is unsupported by the rules, it is further our position that if Rule 31 was here violated as claimed by the organization the penalty is properly in favor of the employe "suspended" and there should be no pyramiding of penalties. See Award 5927.

This Carrier does not agree with the position of the employes that "it is no concern of the Carrier on whose behalf the claim is presented."

It is further the position of the Carrier that if any claim in behalf of Mr. Ando is sustained, the straight time rather than time and one-half rate would apply as penalty. At least three of the Awards (3271-5269-5926) upon which the employes rely to sustain their position so hold. (See Award 5930). Many other Awards of the Third Division also so hold. A comparative few of these are: 3193, 5271, 5437, 5444, 5721, 5831, 5895 and 5929, all of which are referred to by your Board in Award 5978, which deals with this point alone.

All data contained in this submission has been placed before the employes.

(Exhibits not reproduced)

OPINION OF BOARD: On May 29 1952 Claimant was regularly assigned as a relief-ticket clerk at the Fort Street Union Depot at Detroit, Michigan. He was assigned a work week of Friday through Tuesday, with Wednesday and Thursday as rest days. On Thursday, May 29, 1952, one of Claimant's rest days, Carrier augmented its ticket-clerk forces by th2 addition of one position because of increased traffic due to May 30 being a holiday. There were no qualified extra or furloughed employes available to fill this one-day position. This made it necessary to call a regularly assigned employe for the work. The Carrier used one Mary Hodges, a regularly assigned relief clerk in the Information and Reservation Bureau on the higher-rated one-day position, and a qualified extra employe was used on her regular position on that day. Claimant contends that he should have been called on his rest day

to perform the work at the time-and-one-half rate. It is not disputed that Claimant was senior to Mary Hodges on the Clerks' roster at this point and his qualifications to do the work are not questioned. The Organization relies upon Rule 31, current agreement, which provides:

"Employes will not be required or permitted to suspend work during regular hours to absorb overtime."

In addition to the foregoing rule, the Organization contends that Rule 10, current agreement, was also violated. This rule provides:

"Positions or vacancies of thirty (30) calendar days duration or less shall be considered short vacancies and will be filled without bulletining but in making the assignments, the provisions of Rules 7 and 15 will be observed. Where there is reasonable evidence that such vacancy or position will exist for more than thirty (30) days, it shall be bulletined in accordance with Rule 8, showing, if possible, probable duration."

It will be observed that in the filling of the one-day position that it was to be considered a short vacancy under Rule 10 and that it could be filled by the Carrier for the one day without bulletining it. The parties are in agreement that this is so. Rule 7, referred to in Rule 10, provides that these employes shall be in line for promotion based on seniority, and fitness and ability, the latter being sufficient, seniority to prevail. Rue 15 provides that seniority wil govern in reducing forces.

Prom the foregoing we must conclude that the one-day position which was created to augment the work of the ticket clerks should be filled just as if it were a one-day vacancy in a regularly assigned position. This means that Rule 7 must be observed; in other words, that Mary Hodges was in line for promotion to the higher rated position and, having sufficient fitness and ability, she was entitled to it as against any qualified employe junior to her. Claimant asserts, however, that he had the superior seniority dating which is, of course, true. But he could not take the position on the basis that it was a promoion for him any more than if it had fallen on one of his regular work days. His claim is based on the proposition that the work was overtime and not a newly created position which is not the fact. His claim is for rest day work at the time-and-one-half rate, which under the 40-hour week agreement he can have only as a last resort. Rule 25 (2) (g) (7) supports this statement. It says:

"The least desirable solution of the problem would be to work some regular employes on the sixth or seventh days at overtime rates and thus withhold work from additional relief men."

But Rule 7, specifically mentioned in Rule 10 as one that must be observed, authorized Mary Hodges to take the promotion. The evidence is clear that she was willing to accept the promotion, and the fact that she worked it on such a basis, is sufficient to sustain her right to do so under the promotion rule. On the other hand, the Carrier has the right to have the work done at the straight-time rate if it can do so without violating agreement provisions. Awards 4969, 6036, 6873.

We are again faced with the assertion that the method of handling resulted in the absorbing of overtime. We quite agree that if the Carrier had been unable to have the position filled at the straight-time rate without violating the agreement, the senior employe entitled to work it at the penalty rate would have been entitled to perform it. The factual situation in Award 7039 was very similar to the one before us. We there said:

"rt appears that a regularly assigned clerk-caller was sick and unable to fill his position on July 16, 1952, and subsequent days. Since it was not then known how long he would be off duty,

it was treated as a short vacancy and claimant was temporarily assigned to that position and paid the higher rate of his regular position.

"Such temporary assignment is in full accord with the provisions of Rules 8 (short vacancies) and 20 (b) (extra employes) and claimant was properly paid under Rule 40 (i) (preservation of rates). No overtime being worked or needed, Rule 38 (k) (absorbing overtime) is not applicable to that situation." (Parentheses ours.)

In Award 6819, this Board recognized the right of a Carrier to rearrange the force to meet situations arising because of the existence of temporary vacancies and to pay such persons whose assignments are rearranged in accordance with the provisions of the preservations of rates rule. It specifically holds that the absorbing overtime rule does not apply.

"Certainly the proper purpose of the establishment of new positions of short duration is to obtain the performance of work at straight time rates instead of at overtime rates, * * *"

If the work here in question had been overtime work, Claimant would have been entitled to perform it as against Mary Hodges by virtue of his seniority. But it was not such and Carrier could properly have it performed as it did. Mary Hodges could properly perform it under the promotion rule and be paid in accordance with the preservation of rates rule. Mary Hodges' position was filled by an extra man qualified to perform it, although he could not qualify as a ticket clerk. There was no violation in tis method of handling. We can find no support in the rules for the claim as made.

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