Train Dispatchers who at the request of the Company attend court or appear as witnesses for the carrier will be furnished free transportation, and will be compensated at the day rate of their assignment, or if extra, at trick train dispatcher's daily rate for each day so engaged with a maximum of eight (8) hours for each calendar day, and in addition, necessary actual expenses while away from headquarters. Any fee or mileage accruing will be assigned to the carrier."

Claim was made for payment of eight (8) hours at time-and-one-half rate instead of at pro rata rate as allowed. The claim was declined, was progressed in the usual manner, and is now properly before this Division for decision. Correspondence in connection with the handling of this case on the property is attached as CARRIER'S EXHIBIT "4."

(Exhibits not reproduced.)

OPINION OF BOARD: Upon request by Carrier, Claimant attended an investigation as a witness at Lufkin, Texas on one of his regularly assigned rest days, Friday, September 12, 1969. He was compensated by Carrier at the pro-rata rate of his assignment. The organization maintains that Claimant should be compensated at the time and one-half rate and cites Rule 6 of the Agreement as the basis for this Claim, the pertinent part being:

"Regularly assigned train dispatchers who are required to perform service on the rest days assigned to their positions will be paid at the rate of time and one-half for service performed on either or both of such rest days."

Carrier contends that the above quoted portion of Rule 6 applies only when the service performed on a rest day is "train dispatching service" as defined in Rule 2. Carrier further contends that Rule 23 is controlling in this dispute and requires payment for the involved service at the daily rate - not the penalty rate.

This Board finds that the more recent and better reasoned Awards uphold the contention of the Organization. Rule 23 merely requires Carrier to compensate Train Dispatchers at the daily rate of their assignment if called as a witness. If the day they are called as a witness falls on their rest day, their daily rate under Rule 6 is time and one-half. This Board also finds that Claimant was performing a "service for and on behalf of Carrier when he appeared as a witness on Carrier's request in a case not involving his own position and such "service" is construed to be "work." See Awards Nos. 17316 (McCandless), 10062 (Daly), 15729 (Ives), 16778 (Cartwright), 17164 (Jones) and 14124 (Hamilton). Therefore, this claim will be sustained.

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

AWARD