possible under the circumstances in this case and we therefore necessarily find no violation of the agreement. (see Award Number 10723Moore, and Award Number 3918-Douglas, between these same parties)"

The record in this dispute plainly supports the conclusion that every reasonable effort was made to assign a Pullman conductor to train #32 out of St. Louis on February 27, 1964.

CONCLUSION

The Company has shown in this submission that Rules 25 and 64 were not violated, as alleged by the Organization in its claim to the Board. Also the Company has shown that Night Agent Harris was unable to make a conductor available for the assignment in question, as the term available is defined in Q. and A. 9 of Rule 38 of the Agreement. Further, the Company has shown that the claim in behalf of St. Louis extra Conductor Gallivan is excessive and results in a pyramiding of costs against the Company. Finally, the Company has shown that the awards of the Third Division support Management in this dispute and that the principle in this case is foursquare with the principle found in the awards cited.

(Exhibits not reproduced).

OPINION OF BOARD: The parties are in agreement that on February 27, 1962, PRR Train No. 32 departed from St. Louis, Missouri, carrying two regular sleeping cars without the services of a Pullman Conductor. Petitioner contends that: (1) this violated Rule 64 (a) of the Agreement; (2) a St. Louis District Extra Conductor should have been assigned; and (3) Claimant was qualified and available. Carrier contends that no Conductor was available; and, specifically, Claimant was not "available" within the meaning of that word as set forth in Question and Answer 9 in Rule 38 of the Agreement. Further, Carrier contends, in effect, that it is absolved from compliance with Rule 64 (a) when no Conductor is available.

PERTINENT RULES

The following Rules are pertinent:

_

"OPERATION OF EXTRA CONDUCTORS

i i i i i

A-9. 'Available' means that the conductor entitled to an assignment can be contacted and assigned and can reach the point where he is required to report by scheduled reporting time . . . . . :'

THE MATERIAL FACTS

There was in St. Louis, on February 27, a Pennsylvania Terminal District Conductor, properly assigned to Train No. 32. He was scheduled to report at 6:50 P. M. The train was scheduled to depart at 7:35 P. M. At 6:55 P. M. it became known to Night Agent Harris that the assigned Conductor had not reported. Harris failed in his efforts to locate the assigned Conductor. It being his opinion that no St. Louis District Extra Conductor could report to protect Train No. 32 in less than an hour, he sought to locate an in town Pennsylvania Terminal District Conductor. When he failed he told the Train Conductor to release the train and depart without a Pullman Conductor.

At the hearing it was developed that Claimant lived 119 blocks from Union Station. Petitioner's Local Chairman testified that Claimant had told him he could "make the Union Station in an emergency in twenty minutes;" further, in his opinion Claimant could have protected the assignment had Night Agent Harris communicated with Claimant, without delay, after the failure of the assigned Conductor to report on time became known to Harris.

BURDEN OF PROOF

Petitioner bears the burden to prove that: (1) Carrier violated Rule 64 (a) of the Agreement; and (2) Claimant was "available" within the meaning of that word in Rule 38 (a).

RULE 64 (a)

This Board has no equity powers. Our jurisdiction is limited to interpreting and applying agreements according to the law of contracts.

It is a principle of contract law that when a party binds itself absolutely, without exception for forseeable contingencies, the occurrence of such a contingency does not release the party from its contractual obligation. The principle is applicable in this case.

In Rule 64 (a) Carrier has bound itself, unequivocally, not to operate a train "while carrying, at the same time, more than one Pullman car . " without a Pullman Conductor. This Carrier admits it did. Consequently, since we are foreclosed from giving weight to the arguments of Carrier founded in equity, we find that Carrier violated Rule 64 (a) of the Agreement.

AVAILABILITY OF CLAIMANT

Having found that Carrier violated Rule 64 (a) of the Agreement, we face the issue, within the framework of Rule 38 (a), as to whether Claimant could have been contacted and assigned and could have reached the Union Station in St. Louis by scheduled reporting time. We assume, in absence of an issue, that in all other respects Claimant qualified for the assignment pursuant to Rule 25 of the Agreement.

For the purposes of this case we find it unnecessary to pass upon whether there is a distinction between "scheduled reporting time" and scheduled train departure.

The evidence as to Claimant's availability is meager. In the opinion of Night Agent Harris, Claimant could not report before scheduled train departure. In the opinion of Petitioner's Local Chairman, to at least some extent founded on hearsay, Claimant could have reported before scheduled departure time. There is no factual evidence of probative value as to the time it would have taken Claimant from his home, after notification, to report aboard Train No. 32. Of the opinion evidence, neither version preponderates. Consequently, Petitioner has failed to satisfy its burden of proof that Claimant was "available." We will, therefore, deny paragraph 2 of the Claim.

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 Carrier violated Rule 64 of the Agreement.

That Carrier did not violate Rule 25 of the Agreement inasmuch as Claimant's right to the assignment was subject to his being "available" as prescribed in Rule 38 (a).

AWARD