For all of the above reasons, the instant claim should be declined and we so petition your Board.

It is hereby affirmed that all of the foregoing is, in substance, known to the organization's representatives.

OPINION OF BOARD: On September 13, 1953, there were three telegraphers and a relief operator at the Cadiz Street Yard in Dallas, Texas, and on that date the third telegrapher position was abolished. L. A. Doree holds the regular assignment as second telegrapher and W. H. Franklin is in relief position 10, relieving both first and second shifts on rest days.

Several changes in hours were made until November, 1955 since which time the first telegrapher works from 6:15 A.M. to 2:15 P.M. and the second telegrapher from 3:15 P.M. to 11:75 P.M.

When it is foreseen that the service of the operator on the second shift will be needed after 11:15 (for sometime it was 10:45) his service is suspended for an hour or two and he is instructed to report when required; similar steps are taken with reference to operator of the first shift if need develops.

Carrier thus attempts to avoid violation of the Hours of Service Act forbidding it to require or permit employes handling train orders to work in excess of nine hours in a twenty-four hour period; and Employes assert that Carrier also evades "reinstatement of the needed 3rd telegrapher position."

The Carrier, of course, pays straight time for the entire eight hour shift and in addition time and one-half, or call time, for the added service.

Employes claim violation of (a) Rule 3 providing that "Eight consecutive hours, exclusive of meal hour, shall constitute a day's work"; (b) Rule 5 that the hours of duty of telegraphers shall be fixed by the Superintendent; (c) Rule 12-a that "Regular assignments will have a fixed starting time which shall not be changed without at least 48 clock hours advance notice; (d) Rule 13 (c) that "Employes will not be required to suspend work during regular hours * * *." and (e) that there was no real abolition of the third telegraph position.

Carrier denies all of the Employes contentions, and then asserts that this Board has no jurisdiction because claim was not filed in the name of an individual employe.

Whether payment for "Eight consecutive hours" regardless of whether they are worked is sufficient compliance with Rule 3 need not be decided because of the view we take of this controversy.

There is indication in the file that the hours of the employes were fixed by the Superintendent as required by Rule 5, and also the assertion, stoutly denied, that the Chief Dispatcher fixed some hours, so that the evidence is vague as to whether a violation in this respect occurred.

In our judgment Rule 12 was complied with.

We believe, however, that Rule 13-c, providing that "Employes will not be required to suspend work during regular hours" means what it says and, as interpretation is the function of this Board, we must conclude that in this regard there was a violation by the Carrier.

Reference should also be made to the assertion of Employes that "there was no real abolition of the third telegraph position" and that it should be restored on account of the work load available. It will be recalled that this Board in Award 5235-Boyd said that though:

"Carrier may not abolish a position while the work remains, likewise it need not establish an assigned position until the volume of work warrants, but may use an employs from the extra list."

A careful review of the file shows that, according to Employes figures, during the period from May 19, 1954 to October 14, 1956, embracing 879 days, there were 174 calls-or in other words a call occurred on about twenty percent of the days. By multiplying the 879 days by eight (hours per day) we have 7032 hours. The Carrier asserted, without denial, (and a partial tabulation placed in the record by Employes seems to confirm) that each call averaged about an hour and eighteen minutes, which when multiplied by 174 calls would be 226 hours of overtime or call work. If we compare the 226 hours with 7032 hours we will see that if the abolished shift is restored it would only have work about onethirtieth of the time. This may not be the only test but it is so striking that under the circumstances the Carrier was justified in abolishing the position.

As to Carrier's point on jurisdiction, see Award 9205-M. Stone, and Award 6063-Wenke, where it was said by this Board that "as to who gets the penalty is but an incident to the claim and not a matter in which the Carrier is concerned."

In view of the circumstances herein the allowance should be for only the actual call time paid.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute the 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 herein; and

That the Carrier violated the Agreement to the extent set forth in the Opinion.

AWARD

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

DISSENT TO AWARD NUMBER 9755, DOCKET NUMBER TE-8655

There is a decided difference between requiring employes to suspend work during regular hours (Rule 13-c) without pay therefor, on the one hand, and on the other hand releasing employes for rest during regular hours, with pay

/s/ J. F. Mullen