"Since the seniority of Crossing Watchmen is confined to the city or town in which employed, and there is no rule in the agreement between the Railway and the Brotherhood of Maintenance of Way Employes that provides for furloughed Crossing Watchmen working at a location other than the place first employed, no furloughed Crossing Watchman has any agreement right to work at any other location. However, in cases where Crossing Watchmen are furloughed as the result of the installation of automatic crossing protection devices, we will as we have in the past, give preferred consideration to applications from them for employment for such work at other locations when it is subject to performance by employes of the Railway."

Thus the Employes were in the inconsistent position in their conference of October 2, 1953, with the Superintendent, of progressing the present claim on the grounds that the claimants cut off as crossing watchmen at West Palm Beach had an agreement right to work not under the jurisdiction of the Railway at Cocoa, while at the same time recognizing that crossing watchmen in that status have no such agreement right and asking that "these furloughed employes have a chance to work at other locations." The Employes are in precisely the same situation today. They are attempting to collect by award compensation for the claimants for work not under the jurisdiction of the Railway and to which the claimants would not have any right by virtue of seniority or otherwise if it were under jurisdiction of the Railway.

3. While it is immaterial to the case, since, as has been developed above, the claim is without merit in its entirety, it should be stated for the sake of the record that if the claims had happened to otherwise have merit, the "Note" under the Employes' Statement of Claim, insofar as it relates to time and one-half rate for certain days, would, nevertheless, be invalid. The principle has been so thoroughly established on the Third Division that the penalty for work not performed is the pro rata rate, that reference to specific awards is unnecessary, or as that Division stated in Award 5607:

"In accordance with numerous holdings of this Board, the applicable penalty is the pro rata rate and not the punitive."

The claim in its entirety is without merit and should be denied.

The Florida East Coast Railway Company reserves the right to answer any further or other matters advanced by the Brotherhood of Maintenance of Way Employes, in connection with all issues in this case, whether oral or written, if and when it is furnished with the petition filed ex parts by the Brotherhood in this case, which it has not seen. All of the matters cited and relied upon by the Railway have been discussed with the Employes.

OPINION OF BOARD: This is a claim by two Crossing Watchmen to highway crossing protection work at Cocoa, Florida which was being performed by men with no seniority under the Agreement who were placed on the City payroll under an arrangement by virtue of which the Carrier reimbursed Cocoa for their wages.

No Crossing Watchman position had ever existed before in Cocoa and no Crossing Watchman furloughed under the Agreement resided there.

Both Claimants had been furloughed at West Palm Beach by reason of the installation of automatic crossing protection devices. Claimant Croghan resigned his seniority rights at West Palm Beach and was hired by the Carrier as a Crossing Watchman at Miami where he established seniority on the date he was hired there. Claimant Byrd remained at West Palm Beach where he resides with the status of a furloughed Crossing Watchman.

In view of our ultimate conclusion on the claim we pass the disputed question whether the men employed at Cocoa were employes of the Carrier or police officers of the City. We assume, without deciding, for the purposes of this decision that they were employes, with no seniority under the Agreement, newly hired by the Carrier. This poses the essential question presented by te claim: whether in these circumstances Claimants have any rights under the Agreement to the work at Cocoa

First. It is true that crossing protection work is embraced within the Agreement by Rules 2 and 4 which create sub-departments and seniority ranks both specifying Crossing Watchmen and by Rule 45 which specifies a rate of pay for Crossing Watchmen. It is also true that the bulletining rules require permanent new positions except Cooks and Laborers to be bulletined (Rule 28 (a) and (f) ) and also require that "all employes" holding seniority in the rank bulletined and lower ranks be given an opportunity to bid (Rule 30 (a) ).

On the other hand Rule 3 which defines the "Scope of Seniority Rights" provides:

"(d) Seniority of Crossing Watchmen will be confined to the city or town in which employed."

"32(a) When reducing forces seniority shall govern. . Crossing Watchmen may exercise their seniority rights only at the city or town at which employed."

If there be any inconsistency between Rules 3(d) and 32(a) on the one hand and Rules 28, 30 and 45 on the other, the former should control upon the well settled canon of construction that the specific controls the general provision. To say that Crossing Watchmen have seniority rights under the Agreement is not to say that their scope is coextensive with those of all other employes.

There is, however, no real inconsistency because the basic seniority rights of Crossing Wachmen under the Agreement is not systemwide like all the other employes (except cooks and laborers), but "confined to the city or town in which employed". Since no Crossing Watchman position had ever existed before in Cocoa and no furloughed Crossing Watchman resided there, it follows that no Crossing Watchman either furloughed or in active service elsewhere would have had any bidding rights under the Agreement if the new positions at Cocoa had been advertised.

S«ond. This conclusion is fortified by practice under the Agreement. It is established by the record that the Carrier always has issued bulletins only when new Crossing Watchman positions or vacancies are established or created at cities or towns where Crossing Watchmen are already employed and the bulletins are posted only at such points.

It is true, as in the case of Claimant Crogban, that the Carrier has employed furloughed Crossing Watchmen at a location other than the place first employed when they have been furloughed as the result of the installation of automatic crossing protection devices. But this has been done only upon the explicit assertion by the Carrier that, while the furloughed Crossing Watchman would be given "preferred consideration", he had no contract right to work at the new location; and it does not appear that any such Crossing Watchman ever carried his seniority with him to the new location.

In view of the foregoing considerations we are unable to conclude that Claimants had any right to the work at Cocoa either under the Agreement or under the practice.

That the Agreement was not violated.

AWARD