The "Position of Employes" advanced by the Petitioner's General Chairman in his letter of December 23, 1962 also disregarded the Board's decision in its Award No. 8998 which denied a claim of the petitioning American Train Dispatchers Association that unassigned Train Dispatcher J. D. Hunter, who was protecting a temporary vacancy on Relief Dispatcher Position No. 266 in the respondent Carrier's train dispatching office at Chillicothe, Illinois, should have been used on August 10 and 17, 1954 after having worked five (5) consecutive days as train dispatcher immediately prior to each of those dates. The "Opinion of Board" in Award No. 8998 read as follows:

"The claimant, J. D. Hunter, an unassigned train dispatcher, asks for compensation for August 10 and August 17, 1954.

"The record herein discloses that the claimant, an unassigned train dispatcher, performed five consecutive days' train dispatcher service immediately preceding those two dates.

"Article 11, Section 10-b, and Article IV, Section 1-b of the Agreement clearly provide that unassigned train dispatchers do not have right to claim work on the sixth and seventh consecutive days.

In conclusion, the respondent Carrier respectfully reasserts that the Employes' claim in the instant dispute is wholly without support under the rules of the current Train Dispatchers' Agreement and should be denied for the reasons set forth herein.

OPINION OF BOARD: In Award 13320, we determined that the occupation of the temporary vacancy on Position 2250 commenced on June 16. We' further found that Carrier should have required Claimant to observe the regular working days and rest days of that position from that time until the completion of said assignment.

Applying these principles to the instant case, we find that the Carrier violated the Agreement when it held Miller off work on June 26 and 27, 1962.

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 Agreement was violated.

Award Number 13322

Docket Number TD-14656

following excerpt that is quoted from the "Position of Employes" in Third Division Award No. 8982 which denied a claim of the ATDA that arose on the respondent Carrier's property:

"The employes wish to direct the attention of your Honorable Board to the letter Mr. Comer addressed to General Chairman Buckingham, dated June 7, 1955, supra, wherein Mr. Comer concedes in unmistakable terms that Dispatcher R. E. Johnson was unassigned on May 16, 1955. Mr. Comer states:

`Dispatcher R. E. Johnson was not permitted to work on Tuesday and Wednesday, May 17 and 18, due to the fact that it would have caused him to work on more than five consecutive days in violation of the prohibition contained in Article II, Section 10-b and Article IV, Section 1-b of the current Dispatchers' Agreement.'

"The employes concur with the statement made by Mr. Comer quoted above. Mr. Johnson certainly was an unassigned train dispatcher. Therefore after he had completed five (5) consecutive days service as a train dispatcher he was eligible and entitled to take two (2) consecutive days off as rest days, which in his case were May 17 and 18, 1955."

It will be abundantly clear from the foregoing that the claimant Mr. Miller did not have an agreement right to the work claimed in his behalf on June 26 and 27, 1962, and the Employes' claim in the instant dispute is wholly without support under the rules of the current Train Dispatchers' Agreement and should be denied.

In appealing the claim in the instant dispute to the Carrier's Assistant to Vice President and highest officer of appeal in his letter of December 23, 1962, quoted in the Carrier's Statement of Facts, the Petitioner's then General Chairman, Mr. R. G. Buckingham, described the "Position of Employes" as follows:

"It is the position of the employes that extra or unassigned dispatcher K. L. Miller was assigned to temporary vacancy No. 2250 on June 16th and was required to perform such on this position until displaced by the regular incumbent of this position or a senior unassigned or extra train dispatcher entitled to such service."

While reference was made to Article II, Section 10-b in the "Statement of Claim" he advanced in his letter of December 23, 1962, it will be observed that the Petitioner's General Chairman did not cite a single rule of the current Train Dispatchers' Agreement as support for the "Position of Employes" he advanced therein, and which is incidentally not supported by any rule of the current Train Dispatchers' Agreement. As a matter of fact, the "Position of Employes" advanced by the General Chairman not only disregarded the terms of Article 11, Section 10-b of the current Train Dispatchers' Agreement on which it was presumably based and which expressly provides that unassigned train dispatchers who are used thereunder to protect temporary vacancies "will not thereby have claim to work more than five (5) consecutive days". but also disregarded the terms of Article IV, Section 1-b of the current Train Dispatchers' Agreement which also recognizes and provides that "extra" or unassigned train dispatchers who have worked five (5) consecutive days as train dispatcher "'" * * shall not have the right to claim work " * * " on either the "sixth or seventh days."

AWARD

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary