At the time the Carrier originally declined to allow Night Chief Dispatcher Henderson to lay off on June 17, 1955, there were no telegraphers available to relieve an extra dispatcher (or Mr. Martin) on his regular assignment as telegrapher. For that reason, Mr. Henderson's request to be off on June 17, 1955, was declined, and in that connection attention of this Board is called to the fact that there is no rule in the Dispatchers' Agreement which places an obligation upon the carrier to allow a man to lay off when there are no men to relieve him without violating the Hours of Service Law.
Prior to the arrangement made on the evening of June 17, 1955, between Mr. Sorenson and Mr. Henderson to have Mr. Sorenson work as Night Chief Dispatcher that night, the Carrier had no knowledge that Mr. Henderson would not work that night, and prior to that arrangement, Mr. Martin had worked from 7:00 A. M. to 3:00 P. M. on his regular assignment as telegrapher-clerk that (late. He therefore could not work as an extra dispatcher on the position of night chief dispatcher that night without violating the Hours of Service Law.
Inasmuch as Mr. Martin was not available as an extra dispatcher under the Hours of Service Law at the time Mr. Henderson and Mr. Sorenson made the arrangement to have Mr. Sorenson work as night chief dispatcher that night, Article 4(h) of the Dispatchers' Agreement has no application.
In view of all the foregoing, the claim presented on behalf of Extra Train Dispatcher Martin 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: This is a companion docket of TD-8329. The alleged violation claimed in this case grew out of the same set of facts involved in TD-8329. On the date in question when C. S. Sorenson performed service as night chief dispatcher, the Petitioner contends that under the rules of the Agreement Extra Dispatcher W. K. Martin should have been used. Claimant Martin was regularly assigned as Telegrapher-Clerk at Logansport, Indiana, from 7 :00 A. M. to 3:00 P. M. The record shows that he worked his regular assignment on the claim date for which he was allowed the usual pay.
Petitioner relies upon Article 4, Section (h) of the effective Agreement. This section reads:
The record shows that the arrangement whereby Sorenson worked the trick in question developed some hours after Claimant Martin had worked his regular trick. Under such circumstances it was impossible for the Carrier to call and use Martin without being in violation of the flours of Service law. This is undisputed in the record. Had such an arrangement with Sorenson been made prior to Martin's regular trick, then the Carrier would have been in clear violation of the cited contract provision.
Award 5003 of the Third Division has been cited in support of a sustaining award. This award, and the facts involved in the docket, were clearly distinguishable from the instant case. There a vacancy occurred and the Carrier failed to call the proper man. There was no Hours of Service law solo-l0 714