The claim in behalf of Conductor Collins is without merit and should be denied.

All data presented herewith in support of the Company's position have heretofore been submitted in substance to the employe or his representative and made a part of this dispute.

(Exhibits not reproduced.)

OPINION ON BOARD: The record shows Carrier admission that Claimant Conductor I. H. Collins "fell due the assignment to New York Central trains 35-44, a round trip to Massena, reporting at 9:45 P.M., April 5, 1955

Carrier maintains, however, Claimant "refused that assignment," stating:

"At approximately 9:55 A.M., April 5, 1955, 5 minutes prior to the signout period (10 A.M: 12 Noon), the signout clerk on duty, M. T. Schettino, telephoned Conductor Collins, whose residence is in Nanticoke, Pennsylvania, in order to afford him an opportunity to make up his mind whether he wished to displace into a regular line under the provisions of Rule 37, or to operate from the extra board. When Collins questioned Schettino about the extra assignment "which was open" for him Schettino replied that Collins was entitled to the assignment on NYC trains 35-44, New York-Massena and return, reporting time 9:45 P.M., April 5. Also, when Collins questioned the signout clerk as to his position on the extra board Schettino informed him that on the basis of his credited and assessed hours (13:00 hours) he was second man on the extra board, but that he was not entitled to the second assignment, New York-Chicago, reporting time 5:30 P.M., April 5, since his layover did not expire until 9:45 P.M.

"Conductor Collins then asked the signout clerk what conductor in regular line service he could displace that evening. Clerk Schettino checked his records and informed Collins he could not displace anyone that evening. Collins thereupon told the signout clerk 'to forget about it' and stated that he would 'call Al,' an apparent reference to the signout clerk who would be on duty the following morning. Since Collins did not accept the assignment in extra service on NYC trains 35-44, New York-Massena, Schettino marked Collins 'not available' for the April 5, 1955 signout period."

"* * * Since Mr. Collins did not accept 35 & 44 which I told him was open for him this day I marked him not available. * * *

"After the conversation mentioned above with Mr. Collins ended, he left no doubt in my mind of his availability and thus I marked him not available * * *."

Claimant Collins asserts in this record:

"The facts in this case are that I was not offered assignment 35-44.

"Since I was not offered the assignment I could not and did not refuse the assignment or any other assignment that day."

"There has been some comment recently that extra conductors are failing to make themselves available during the signout period and, in some cases, are failing to notify the district office prior to the signout period as to where they can be contacted * * *.

"All extra conductors should understand they are expected to be available during the signout period unless permission is granted by the Company prior to the signout period to allow the conductor to be unavailable. It should be further understood that this permission is to be granted only for legitimate and sound reasons and is not to be extended to permit an extra conductor to avoid accepting a less desirable assignment for which he might properly be due if he were available during the signout period. It should also be understood that extra conductors are expected to accept any assignments that fall due them under the rules of the working Agreement."

Thus, argues the Union,

"But the Company's defense is also improper for the reason that the Company's own instructions disclose that it is not within the power of a Conductor to determine whether he is or is not available."

There is also the argument by the Organization that

"The parties are agreed that this assignment was not offered to Conductor Collins during the established signout period, but that instead the Signout Clerk contacted Conductor Collins outside of the established signout period:"

"* * * are expected to be available during the signout period unless permission is granted by the Company prior to the signout period * '" *."

We will sustain this claim for 4 reasons:

1. Carrier agrees Claimant "fell due" the assignment in question.

2. Claimant was not called during the established signout period.

3. Under Carrier's operating instructions, Claimant could only be declared unavailable by Carrier's permission. Record does not show such was granted.

4. Signout Clerk Schettino's statement that since Claimant "did not accept * * * I marked him not available * * * he (Claimant) left no doubt in my mind of his availability * * *" is no proof that Claimant desired to be recorded as unavailable.

That the Agreement was violated.

AWARD