The claim is predicated on the basis that the Claimant was not permitted to perform certain work and not on the basis of work actually performed. Therefore, in conformity with numerous awards of this Board that payment at the straight time rate is the proper payment for work not performed, the Claimant would not be entitled to payment at the time and one-half rate here claimed.

IV. Under The Railway Labor Act, The National Railroad Adjustment Board, Third Division, Is Required To Give Effect To The Said Agreements And To Decide The Present Dispute In Accordance Therewith.

It is respectfully submitted that the National Railroad Adjustment Board, Third Division, is required by the Railway Labor Act to give effect to the said Agreements and to decide the present dispute in accordance therewith.

The Railway Labor Act in Section 3 First, Subsection (i), confers upon the National Railroad Adjustment Board the power to hear and determine disputes growing out of "grievances or out of the interpretation or application of agreements concerning rates of pay, rules and working conditions." The National Railroad Adjustment Board is empowered only to decide the said dispute in accordance with the Agreement between the parties to it. To grant the claim of the Employes in this case would require the Board to disregard the Agreements between the parties thereto and impose upon the Carrier conditions of employment and obligations with reference thereto not agreed upon by the parties to this dispute. The Board has no jurisdiction or authority to take such action.

CONCLUSION

The Carrier has shown that the claim in this case has not been handled properly in accordance with the applicable provisions of Article V of the August 21, 1954 Agreement, and, therefore, is barred from consideration by this Board. It also has shown that the claim lacks the necessary merit to warrant a sustaining award by this Board, and, particularly, that the provisions of Article 2, Section 23 (h) of the Signalmen's Agreement were not violated as the Employes allege.

Therefore, the Carrier respectfully submits that your Honorable Board should deny the claim of the Employes in this matter.

The Carrier demands strict proof by competent evidence of all facts relied upon by the Employes with the right to test the same by crossexamination, the right to produce competent evidence in its own behalf at a proper trial of this matter and the establishment of a record of all of the same.

All data contained herein have been presented to the employe involved or to his duly authorized representatives.

(Exhibits not reproduced.)

OPINION OF BOARD: There is a Joint Statement of Agreed On Facts in this dispute stating the positions of the Claimant and the Carrier. That action by the parties disposes of the Carrier's claim, that the Board has no jurisdiction, on the reason that the Carrier did not have proper notice of the claim as it was handled on the property. Award 7446-Shugrne. Award 10075.

The contentions of the parties are further narrowed by the admission by Carrier in its letter to General Chairman Park, July 7, 1958.

"We agree that if the work had been strictly that of a maintenance nature, Claimant should have been permitted to remain on duty for the subsequent work."

That frank and solemn admission disposes of all questions except alone the one presented in the same letter, that the work of Maintainer-Test was not work normally performed by Claimant A. Goodman or that he was qualified to do.

"The work contemplated at time Claimant was relieved consisted of testing necessary to determine positively the cause and subsequent correction of these circuit functions which tests were to be performed under traffic.

"The correction of this condition could have involved anything from determining if an instrument was functioning properly to a major circuit revision which may have included the addition or changing of instruments or other appliances, also field testing and operation of several instruments with operating characteristics different from those previously installed were on hand for these tests, which work properly belonged to a Maintainer-Test"

We quote further from the same letter.

"The work performed by the Maintainer-Test was not work primarily associated with Claimant's assignment, that is, maintenance work, but involved installation of new equipment, considerable testing and signal circuit changing which required revision on signal circuit plans.

"Claimant's qualifications not being adequate to perform the majority of work required the supervision properly selected the senior qualified employe."

The Carrier consistently and throughout the dispute asserted that the work of Maintainer-Test was more exacting, required different qualifications and was not regularly done by Goodman. There is no outright denial of this by the Claimant and he admits that the work is not the kind performed on a maintenance territory every day.

The Claimant does contend, however, that he is the assignee of the job of Maintainer at the location Signal 13.7 and R. T. Tarvin Maintainer-Test was from another territory and notwithstanding he was filling the place of R. H. Lewis, the regular Maintainer-Test (during his absence therefrom) he did not take on the attributes and rights thereof possessed by Lewis. Since Tarvin had been regularly assigned to the job to perform the same work of Lewis he was a successor to Lewis, his alter ego and stood in his shoes. Thus, the unassigned day rule is not here involved. Tarvin was in effect a regular employe. Award 5811-Carter.

Claimant cites no provision of the agreement which prohibits the Carrier from assigning a Maintainer-Test to work temporarily on other than his reg-

greater seniority under the agreement, was already on duty, qualified to perform the work and was entitled to the overtime which would have belonged to Lewis at signals 15.8 and 15.9, had he been at work at his job. Award 5346Robertson holds that overtime work arising out of a particular position belongs to the occupant of that position.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 involved herein; and

That the Carrier did not violate the Agreement.

AWARD