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 or 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 Agreement 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

Carrier has shown that the action here complained of was precisely in accord with the provisions of Regulation 4-D-1 (a) of the applicable Agreement, that said Agreement was not, in any manner, violated and that, therefore, the Claimant is not entitled to the compensation which he claims.

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

(Exhibits not reproduced.)

OPINION OF BOARD: The Claimant was a block operator and the senior extra train dispatcher. A one day vacancy occurred on the B district February 26, 1963. Strader was available to perform the work as the 26th was one of the weekly rest days on his block operator assignment. If the Carrier had used the Claimant he would have been entitled to time and onehalf. No other extra employe was available to perform the work on the B district at straight time. This vacancy was filled by moving the incumbent of the regularly assigned third trick Train Dispatcher position on the A district to the B district and the A district position was filled by an extra Train Dispatcher who had not worked five (5) consecutive days as an extra Train Dispatcher and was not qualified on the B district.

We believe these parts of Rule 5-B-1 to control:

"(c) Except as provided in the foregoing paragraph (b) of this Regulation (5-B-1), relief assignments of less than five (5) days per week will be performed by extra Train Dispatchers.

(d) Where, in the performance of extra work, no extra employes are available who can be used at the pro rata rate of pay and it therefore becomes necessary to assign an employe who must be paid at the punitive rate, assignment will be made in accordance with the following order:

1. Senior available extra Train Dispatcher."

The Carrier was bound to call the Claimant. The fact that such cost the Carrier 50% more is of no greater significance than if the Carrier found they could buy rail at a 50% saving over a purchase contract they had signed. Efficiency is a part of negotiations, not interpretations.

That the parties waived oral hearing;

That the Agreement has been violated.

AWARD Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

CARRIER MEMBERS' DISSENT TO AWARD 13646,

DOCKET TD-14798

(Referee Hutchins)

This award is in error for the following reasons:

1. It failed to give effect to other rules which Carrier relied upon as an aid to the interpretation of Rule 5-B-1 (d) viz. Regulations 4-C-1, 4-D-1 and 5-B-1 (c).

2. It ignored the salient fact that an extra employe was available in District A and he was properly used on that district following the transfer of the regular Train Dispatcher from District A to District B.

3. It ignores a basic responsibility residing in Management that it has the duty to operate efficiently, and we have repeatedly stated this includes the right to have work performed at the straight time rate, as long as it does not violate a provision of the Agreement. Awards 4869, 5109, 6961, 7169 and 5331. Regulations 5-B-1 (c) and (d) do not prohibit the exercise of this right, and this is especially true when the extra employe with less than 40 hours that week is given the work on District A rather than the extra employe on District B who had already exceeded his forty hours and could have been used only at the punitive rate. In fact, that portion of Regulation 5-B-1 (e) which the Majority failed to quote, supports this conclusion, for it says:

"The assignment of such work to extra employes will be in accordance with their seniority in the particular class and their availability, except when the use of the senior extra employe would require payment of the punitive rate of pay and a junior extra employe is available who can be used at the pro rata rate of pay. · * * "

Regulation 5-B-1 (d) says:

"Where, in the performance of extra work, no extra employes are available who can be used at the pro rata rate of pay and it therefore becomes necessary to assign an employe who must be paid at the punitive rate, assignment will be made in accordance with the following order: * * * "

The facts show the Carrier had an extra employe available at the pro rata rate, and in the absence of a prohibition in the contract preventing the transfer of regularly assigned Train Dispatchers temporarily to other positions, the Majority should have followed the line of authority cited, and held that Carrier's actions were in full compliance with the Agreement and that no basis for complaint existed.

For the reasons set forth above and others, we dissent.

W. F. Euker