(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes ( (formerly Transportation-Communication Division, BRAC) PXRTTFS TO DISPUTE: (Missouri-Kansas-Texas Railroad Company

 STATEMENT 07 CLA'TM: Claim of the General Committee of the Transportation-Com
 munication Division, BRAG, on the Missouri-Kansas-Texas
 Railroad Company, T-C 5814, that:

 Claim in favor of telegrapher G. L. Walter, regularly assigned to the MusknRee-Tulsa-McAlester relief assignment, for the difference between time and :,nF-`alf rate, as claimed, and pro-rata rate, as allowed for eight hcurs' servirr, as rendered on February 26 (Thursday), February 27 (Friday), March 2nd (,Monday). and March 3rd, 1970 (Tuesday).

 OPTNION OF BOARD: This claim arose account claimant, a regularly assigned
 relief telegrapher, being required to work at the pro
 rata rate for eleven consecutive days without observing a rest day. Claimant
 contends that f~-ur of these days were rest days for which he should have been
 paid time. and one-half.

Claimant was the regularly assigned telegrapher on the MuskogeeTul.sa-MCAleN:.er relief assignme his position as regularly assigned relief telegrapher to protect a vacation vacancy at North Tower, Muskogee, Oklahoma. He worked four days of the work week of his regular assignment before he moved to the North Tower vacancy. (February 21-24, 19701. He worked the North Tower vacancy for seven successive days. (February 25-March 3, 1970) Claimant's position as regularly assigned relief telegrapher protected the North Tower rest days, which, in this instance, fell on March 2 and
The Rules to be considered are Rules 9(b) and 26 (m) of Agreement between the parties effective September 1, 1949. Also to be considered is a Letter of Understanding entered into by the parties under date of September 15, 1°53. The Rules, in pertinent part, and the Letter of Understanding read as follows:





"when these positions are reclassified to agent telegraphers.

 Work in excess of 40 straight time hours in any work week shall be paid for at one and one-half times the basic straight time rate except where such work is performed by an employe due to moving from one assignment to another or to or from an extra or furloughed list, or where days off are being accumulated under paragraph (g) of Section 1 of Rule 26.

 Employes worked more than five days in a work week shall be paid one and one-half times the basic straight time rate for work on the sixth and seventh days of their work weeks except where such work is performed by an employe due to moving from one assignment to another or to or from an extra or furloughed list, or where days off are being accumulated under paragraph (g) of Section 1 of Rule 26."

 "RULE 26 - The Fort- '?cur Week

 (m) - Service on Rest Days -

 1. This paragraph (m) is for the sole purpose of determining the compensation for employes who are required to work on their assigned rest days. It is not to be used to create, enlarge or take away any rights or obligations which the carrier or the employes may have by virtue of other rules in this agreement, including those adopted or revised to conform to the March 19, 1949 Agreement. Among others, it is to have no bearing on rules in effect on and after September 1, 1949, relating to the right of the employes, if any, or on the obligation of the carrier, if any, to have positions filled on any day of the week."

                    Docket Number TE-19435


        Letter of Understanding dated September 15, 1953:


                          "Dallas - September 15, 1953


            SUBJECT: 40-Hour Week - Telegraphers'

            Agreement


        "Hereafter, when a regularly assigned employe covered by the Telegraphers' Agreement, under Company orders, works the five or six regularly assigned work days of his assigned work week, and is then used on regularly assigned rest day of his assigned work week in extra service, the employe so used should be paid at time and one-half rate for work actually performed.


        If thereafter continued in extra service, the said employe will take the work days and rest days of the position on which used in extra service.


        When returned to his regular assignment, said employe will resume the assigned work days and rest days of his regular assignment.


        Where the regularly assigned employe exercises his seniority to perform temporary extra work, he will take work days and rest days of assignment in extra service when he assumes the duties of the position in extra service."


                  CONTENTIONS OF PARTIES


Petitioner contends Carrier violated Rules 9(b) and 26 (m) and that Carrier must pay time and one-half for claimant's work on the rest days of his regular position, February 26 and 27, 1970, and for his work on the rest days of the North Tower position, March 2 and 3, 1970. Because claimant was moved to North Tower at the direction of Carrier, it is contended the situation is not within the Rule 9(b) exception which permits pro rata pay for work in excess of forty hours or five days in a work week where such work is performed "by an employee due to moving from one assignment to another or to or from an extra or furloughed list."
                      Award Number 19618 Page 4

                      Docket Number TE-19435


      It is Carrier's position that the Rule 9 (b) exception applies where an employee is permitted and/or required to move from one assignment to another and that, in any event, the September 15, 1953 Letter of Understanding supports Carrier's


                        RESOLUTION


      In order to resolve these contentions we shall first examine the Understanding dated September 15, 1953, because, where applicable, such a special agreement takes precedence over general provisions of the Agreement.


      The Understanding relates to a regularly assigned employee who is used in extra service and then returned to his own assignment; it prescribes a formula to determine when such an employee shall be paid time and one-half for work on the assigned rest day of his assigned work week and when he shall be paid time and one-half for work on the rest days of the position to which diverted. Apparently the parties intended the Understanding to govern the instant situation and we shall give it that effcct.


      Paragraph 1 of the Understanding provides that time and one-half will be paid for work on a rest day "when a regularly assigned employee... under Company orders, works the five or six regularly assigned work days of his assigned work week, and is then used on regularly assigned rest day of his assigned work week, in extra service..." Claimant worked only four "regularly assigned work days of his assigned work week" before working at North Tower in extra service. And since four days are not "five or six" days as clearly specified in the Understanding, it necessarily follows that the Understanding precludes claimant from receiving time and one-half pay for working his own rest days of February 26 and 27, 1970.


      Paragraphs 2 and 3 of the Understanding preclude the claim for March 2 and 3, 1970. These paragraphs provide:


            "If thereafter continued in extra service, the said employee will take the work days and rest days of the position on which used in extra service.


            When returned to his regular assignment, said employee will resume the assigned work days and rest days of his regular assignment."


      Claimant worked in extra service at North Tower from February 25 through March 1, 1970. ')n March 2, 1970, he returned to his regular assignment as relief telegraphe he worked at North Tower on March 2 and 3, 1970, he had resumed "the assigned work days ...of his regular assignment", as provided in paragraph 3 above; thus his March 2 and 3 work at North Tower was performed on assigned work days of his regular assignment. Stated differently, he did not continue in extra


I
                Award Number 19618 Page 5

                Docket Number TE-19435


service at North Tower on and after March 2, so as to have the North Tower rest days accrue to him under paragraph 2 above by reason of his having worked the previous five assigned work days of the North Tower position.

        For the above stated reasons we shall deny 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 Ins jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                      A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST: ~~·~,~,/
 Executive Secretary

        Dated at Chicago, Illinois, this 27th day of February 1973.