(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:

(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher E. C. Bush for June 6, 1970 for service performed on his assigned rest day in Carrier's McCook, Nebraska train dispatching office.

 (b) For the above violation, the Carrier shall now compensate Claimatt E. C. Bush eight (8) hours at assistant chief dispatchers for June 6, 1970.

(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher L. E. Bath for October 4, 1970 for service performed on his assigned rest day in Carrier's McCook, Nebraska train dispatching office.

 (b) For the above violation, the Carrier shall now compensate Claimant L. E. Bath eight (8) hours at the punitive rate of pay then applicable to assistant chief dispatcher
                      CLAIM #3


(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier'") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher M. D. Pothoff for October 25, 1970 for service performed on his assigned rest day in Carrier's 11--Cook, Nebraska train dispatching office.

 (b) For the above violation, the Carrier shall now compensate Claimant M. D. Pothoff eight (8) hours at the punitive rate of pay then applicable to assistant chie
                    Award Number 20017 Page 2

                    Docket Number TD-19984

                    CLAIM #4


(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher J. E. Roten for October 25, and November 15, 1970, respectively, for service performed on his assigned rest days in Carrier's Alliance, Neb. raaka train dispatching office.

 (b) For the above violations, the Carrier shall now compensate Claimant J. E. Roten eight (8) hours at the punitive rate of pay then appli. cab la to assistant chief dispatchers for October 25 and November 15, 1970, respectively.

                      CLAIM Jk5


(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 7(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher L. R. Bentley for November 1, 8, 22 and 29, 1970, respectively, for service performed on his assigned rest days in Carrier's Alliance, Nebraska train dispatching office.

 (b) For the above violations, the Carrier shall now compensate Claimant L. R. Bentley eight (8) hours at the punitive rate of pay then appli. cable to assistant chief dispatchers for the respective dates named in para. graph (a) above.

                      CLAIM #6


(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher L. E. Bath for December 11, 1970 for service performed on his assigned rest day in Carrier's McCook, Nebraska train dispatching office.

 (b) For the above violation, the Carrier shall now compensate Claimant L. E. Bath eight (8) hours at the punitive rate of pay then applicable to assistant chief d
                      CLAIM #7


(a) Burlington Northern Inc. (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 3(b) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher M. D. Pothoff for December 27, 1970 for service pergormed on his assigned rest day in Carrier's McCook, Nebraska train dispatching office.

 (b) For the above violation, the Carrier shall now compensate Claimant M. D. Pothoff eight (8) hours at the punitive rate of pay then applicable to assistant chie
                    Award Number 20017 Page 3

                    Docket Number TD-19984

                    ' CLAIM #8


(a) Burlington Northern Ins, (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Article 1(h) thereof in particular, when it refused to properly compensate Claimant Train Dispatcher V. G. Nylander for January 21, and January 27,'1971, Claimant Train Dispatcher E. C. Bush for January 22, 1971, and Claimant Traiq Dispatcher L, E, Bath for January 23, 1971 for service performed on their respective assigned rest days in Carrier's McCook, Nebraska train dispatching office,

 (b) For the above violations, the Carrier shall now compensate the respective Claimants named in paragraph (a) above, eight (8) hours at the punitive rate of pay then applicable to assistant chief dispatching for the respective dates also named in paragraph (a) above.

 OPINION OF BOARD: This dispute involves eight separate claims in which the
 regularly assigned Train Dispatchers were required by the
 Carrier to work as Chief Train Dispatchers on Claimants' assigned rest days,
 In each instance, Claimants were compensated at the Chief Train Dispatcher's
 regular rate of pay but were not paid at the punitive rate Petitioner claims
 is appropriate. The facts are not in dispute.

 Carrier first alleges that five of the claims should not be allowed since they were presented on the property and appealed for the punitive rate applicable to a Train Dispatcher and then brought to the Board for the punitive rate applicable to Assistant Chief Dispatcher, a higher rate. Thus, Carrier claims, these particular claims were amended and hence may not be allowed. The record indicates that all the claims on the property were handled by almost identical correspondence, and in fact by correspondence referring to the first claims in the group which were processed, for both the arguments and positions by both sides. As Carrier points out, we have consistently held that where there is a substantial variance between the claim handled on the property and that presented to the Board, we cannot resolve the dispute (Award 16607 and others). We do not find there was "substantial variance" between the claims in this cane; we do not believe that Carrier's position was prejudiced in any way by the variance. In our judgment versus pro-rata pay for the claimants, which was clearly set forth in all the claims both on the property and before us. Our rules and procedures should be construed, with due regard for the parties' rights, to permit resolution of controversies on their merits, rather than on technicalities, whenever possible. (Award 2622) We also reject Carrier's contention that the Organization has not met its burden of proof since Carrier failed to substantiate this charge and also did not raise this issue on the property.

        Two Rules are relevant to the principal issue herein:

                    Award Number 20017 Page 4

                    Docket Number TD-19984

                    "ARTICLE 2


          (e) SERVICE ON POSITIONS OTHER THAN SENIORITY CHOICE.


          An assigned train dispatcher required to work a position other than the one he obtained in the exercise of his seniority,except an assigned train dispatcher position of chief dispatcher, or assistant chief dispatcher, shall be compensated therefor at the overtime rate of the position worked; however, except as provided in Article 18, no additional payment shall be made to such train dispatcher due to not having worked his regular assignment.


                      "ARTICLE 3


          (b) SERVICE ON REST DAYS.


          A regularly assigned train dispatcher required to perform service on the rest days assigned to his position will be paid at rate of time and one-half for service performed on either or both of such rest days.


Carrier argues that Rule 2 (e) in its exceptions "clearly exclude compensation at the overtime rate on any basis on positions of chief dispatche Further it is argued that Rule 2(e) must prevail over Rule 3(b) and that when Claimants were used in relief of the excepted Chief Dispatchers they were not subject to the punitive provisions of Rule 3 (b).

 As we said recently in Award 19961, involving the same parties, Rule 2(e) qualifies the application of seniority as is indicated by its title; it is clear and totally unambiguous. However,we deem it equally clear that Rule 2 (e) was not intended to remove Train Dispatchers required to serve as Chief Dispatchers from the coverage of all other provisions of the Agreement.

 Carrier's interpretation of the rule would permit the regular requirement of five days of work as a Train Dispatcher and then two days relieving a Chief Train Dispatcher all at pro-rata pay. This construction is contrary to the provisions of Article 3 of the Agreement as well as to the clear intent of national agreements on the five day week issue. We do not find that prior Awards cited by Carrier are controlling in this case. In Award 19845, in a closely related factual circumstance, we held that a Claimant relieving in the position of a Chief Train Dispatcher "...had an absolute vested right to compensation at time and on perform on one of his regularly assigned rest days." To accept Carrier's argument would mean that this Board is modifying the provisions of Rule 3 (b) by defacto adding the phrase to the first paragraph "...Except when serving as Chief Train Dispatcher". We obviously have no authority to re-write the rules and we do not find that Rule 2(e) supercedes and negates Rule 3 (b); both rules are clear and unambiguous. For these reasons we must sustain the claims.
                    Award Number 20017

                    Docket Number TD-19984 Page 5


        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 ate 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.


                      A W A R D


        Claim sustained.


                        NATIONAL Ru.ILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of October 1973.