-41po. a" Award No. 18319
 Docket No. TE-18557




PARTIES TO DISPUTE: TRANSPORTATION-COMMUNICATION DIVISION, BRAC ERIE-LACKAWANNA RAILWAY COMPANY

 STATEMENT OF CLAIM: Claim of the General Committee of the Transportation-Communication Division, BRAC, on the Erie Lackawanna Railroad, that:



EMPLOYES' STATEMENT OF FACTS:

An Agreement between the parties, effective March 1, 1957 as amended and supplemented is available to your Board and by this reference is made a part hereof.

 This claim was timely filed, progressed under the provisions of the Agreement to the highest officer designated by the Carrier to receive appeals, including conference, and has been denied. The Employes therefore appeal to your Honorable Board for adjudication.

 The cause of this claim is Carrier's refusal to permit Claimant to work on one of his rest days, November 6, 1967, alleging that to do so would result in a violation of the Hours of Service Law.





This claim arose at Hammond Drawbridge, Hammond, Indiana, where Claimant is the regularly assigned incumbent of a five-day per week assign-

OPINION OF BOARD: Claimant was regularly assigned as Operator at Hammond Drawbridge, with rest days Monday and Tuesday. His rest days were part of a regular rest day relief assignment. On Monday, November 6, 1967, one of Claimant's rest days, the occupant of the relief assignment was not available and there was no extra employe available. Instead of using Claimant to work on his rest day, Carrier used another employe from a different location who was also observing a rest day.


It is the contention of Petitioner that Claimant, as the regular employe, was contractually vested with the right to work the position on his November 6, 1967 rest day in the absence of the regular relief employe or an available extra employe.







"We fail to see how Carrier's use of Mr. Burdg nine hours and 20 minutes on November 5th has anything to do with his right to work on November 6, 1967:'


Carrier's highest officer declined the claim, after conference, in these words:



The sole issue, thus framed, is whether Carrier was legally barred by the Hours of Service Law from assigning Claimant to the vacancy on November 6, 1967, Otherwise stated, was Claimant de jure unavailable to work the position.


Taking judicial notice of the Hours of Service Act, approved March 4, 1907, we find therein, in Section 2, the specifics of the Act's restraints as to Operators' hours of service:


"SEC. 2. That it shall be unlawful for any common carrier, its officers or agents, subject to this Act to require or permit any employe subject to this Act to be or remain on duty for a longer period than sixteen consecutive hours, and whenever any such employe of such common carrier shall have been continuously on duty for sixteen hours, he shall be relieved and not required or permitted again to go on duty until he has had at least ten consecutive hours off duty; and no such employe who has been on duty sixteen hours in the aggregate in any twenty-four hour period shall be required or permitted to continue or again go on duty without having had at least eight consecutive hours off duty: PROVIDED, That no operator, train dispatcher, or other employe who by use of the telegraph or telephone dispatches, reports, transmits, receives or delivers orders


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The position taken by Carrier is without statutory support. We will sustain 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 the Agreement.









Dated at Chicago this 4th day of December 1970.

 Keenan Printing Co., Chicago, Ill. Printed in U.S.A.
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