different factual circumstances. See Award No. 4439, wherein this Board stated:
It is the position of the Carrier that to include Mr. Sorenson as being entitled to time and one-half for service performed on the date in question under the provisions of Article 3(a) when not required to perform service, would be in violation of one of the well-established rules of contractual construction that, when clear and unequivocal, the terms of an agreement must be given their plain and ordinary meaning.
Inasmuch as the clear and unequivocal meaning of Article 3(a) is that time and one-half is only allowed when a regularly assigned train dispatcher is required to perform service on his rest day, the Carrier has by agreement only committed itself to provide payment at pro rata rate for the service performed by Mr. Sorenson in the instant case.
To grant the claim presented in favor of Train Dispatcher Sorenson for overtime rate in lieu of pro rata rate for service performed on the night in question would require this Board to disregard the agreement between the parties and impose upon the Carrier an obligation not agreed upon.
In view of all the foregoing, the cl·xiin presented on behalf of Train Dispatcher Sorenson should be denied.
The Carrier affirmatively states that the substance of all matters referred to herein has been the subject of correspondence or discussion in conference between the representatives of the parties hereto and made a part of the particular question in dispute.
OPINION OF BOARD: There is no material dispute between the parties with respect to the essential facts in this case. Claim is made on behalf of Train Dispatcher C. S. Sorenson. It is contended that on claim date, June 17, 1955 when he worked on one of his two rest days he should, under the applicable rules of the Agreement, have been compensated at the rate of time and one-half instead of at the straight time rate.
It appears that on the date in question the regularly assigned night chief dispatcher wished to be off from work for personal reasons. Prior to this time the Carrier had denied his request. However, on the evening of claim date, shortly prior to the beginning of the trick Claimant Sorenson agreed to take the night chief dispatcher's trick, apparently at straight time rate of pay. This arrangement was agreed to by Carrier, and Claimant proceeded to work the trick in question for which he was compensated at the straight time rate. Petitioner contends that this form of payment was in violation of Article 3 (a) of the applicable schedule.
Cited Article 3 provides that "Each regularly assigned train dispatcher will be entitled and required to take two (2) regularly assigned days off per week, as rest days, except when unavoidable emergency prevents furnishing relief." Certainly there was an "unavoidable emergency" involved in the instant situation.
The arrangement whereby Claimant worked on his rest day at straight time rate was made between two individuals and concurred in by the Carrier's officer. It has long been held by awards of this Division and other tribunals that an individual and the carrier cannot make an agreement to vary the requirements of the contract unless a specific rule so provides or the real contracting parties so agree.
Once this individual agreement had been made, although unjustified under the applicable rules, Claimant was required to protect the service in question. 8009-9 704