(American Train Dispatchers Association
 PARTIES TO DISPUTE:
 (Soo Line Railroad Company

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

 (a) The Soo Line Railroad Company (hereinafter referred to as "the Carrier") violated the Agreement in effect between the parties, Rules 4 and 13 thereof in particular, when it refused to compensate Train Dispatcher E. E. Monear, hereinafter referred to as "the Claimant" eight (8) hours at the time and one-half rate of trick dispatcher position on December 10, 1970 when Carrier suspended operation and in effect abolished train dispatchers' positions without seventy-two (72) hours advance notice,

 (b) Carrier shall now be required to compensate the Claimant eight (8) hours at the time and one-half rate for December 10, 1970.

 OPINION OF BOARD: The facts and circumstances out of which this claim arose
 are practically the same as in Award 20115. The parties
 are the same with the American Train Dispatchers Association representing
 Claimant, Train Dispatcher E. E. Monear, against the Soo Line Railroad Company.
 However, in this case Claimant was instructed by Carrier's message dated Decem
 ber 9, 1970 to report to work at 8:00 a.m., December 10, 1970, which was one
 of his regularly assigned rest days.

 We feel that Rule 4 (Rest Day Rule) of the Agreement has been violated. Claimant's immediate supervisor, the Chief Dispatcher, who had instructed Claimant to work on his as instructions for him to work had been cancelled. This information could have been furnished Claimant and his assigned rest day could have been observed.

 For reasons set forth in the Board's Opinion in Award 20115, we believe Rule 13 of the Agreement has likewise been violated, and that this claim should be sustained.



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 the Agreement was violated.


                      A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 25th day of January 1974.
                                            1

        Carrier ?'erbers' Dissent to Awards 21)7_15. '0116, 2e1172011°


                      (Referee Hays)


The employes in these cases relied upon Rule 13 of the ^rain Dispatcher's Agreement which reads as follows:

        "Seventy-two (72) hours advance notice shall be given train dispatchers affected of abolishment of a regular position."


Nowhere in the record ?n these few cases is there any competent evidence prnsented by the employes that any dispatcher positions were abolished. In fact the employes admitted, in the record, that no jobs -,:ere abolished when it was stated:

        "In effact the Ccrrier had abolished the train dispatcher's positions even though no notice of such abolishment was issued."


1' ule 13 does not deal with "effect", it deals with positive substance i.e. "a notice shall be given". In t:.e instant c-.aces it is crystal clear that no i:otices ::ere riven. Yet tae referee has scen fit to support the enploye'c position that t:ic Carrier did riot comely ;,ith rule 2.3. This hoard is not empowered ;,o write rules for the parties but L,hi.s is aXactl.r =Trhat this referee has done in arriving at such an erroneous conclusion,.

    Even thouzh no trains were moving because of a strike, the dispatcher's

positions in case were still in existence - not having been abolished. All
 elair.ants !laid t0 d0 ::as rer.02t for workcn them to ",draw their pay". The
 positions were their's and it was their respor.,,ibility to report for them.
 It is obvious the reason they did not report for them was because of the
 strike nnd their refusal to cross a picket line. It was claimants' right
 to chose not to cross a pic::et line, but when they so opted they were not
 entitled to compensation and the awards of this Eoard have so field. It was
 irrelevant whether ':ere was any work to be performed - the claimants'
 positions were still is existence not having been abolished in any way, shape,
 form or manner. The referee should have followed the sound reasoning and
 principles set forth ;this Js,;ard in Third Division Awards X858 (Guthrie),
 10499 (E;ngelstein), 1.945 (I·~es), 16`00 (Engelstein), 167=.0 (Friedman),
 19715 (Devine), his own Award 150,15, 11102 (i:cGrat.h) and Second Division
 Awards 4494 (Anrod and 6435 (rergman) which a~rards were discussed with him.
 Since the record in -hese cases clearly indicates that there ~·ns nn rule
 violation by Carrier and furthcr, claimants in cases above chose not to cross the
 picket lines they did so at their own peril and should not have been compen
 sated for such selection of notion.

    The awards are erroneous and are of no precedential valve.


    For the foregoing reasons we dissent.

_ 2 _

    W. E. JG:::S~J


    P. C. G711ZR


    H. F. I'.. iWILi::;OG


    /- mh ~~y ,.li ~

    G. L. ?~N.'tLGR


          i

            Labor Member's Answer to Carrier M ers'

            Dissent to Awards 20115, 20116 _20117,/20118


                      (Referee Hays)


Under the guise of a Dissent the Carrier Members attempt to strip these well-reasoned Awards of precedential value. These Dissents are nothing more than a reargument of the cases involved, and it is these Dissents rather than the Awards which are erroneous and lack precedential value or any other value.

 Violations of contracts are analogous to violations of the law in one respect, i.e. neither of these actions 13 conducive to admissions of guilt and the accused party is prone to claim innocence of eny wrongdoing. Directors of penal institutions often comment that their prison is full of innocent men, i.e. the majority of the inmates deny that they violated the law. However, whether a violation of contract or the law, denials do not create or establish innocence end the facts or evidence must be considered to determine whether or not a viclation did occur.

 In these disputes Carrier claimed the dispatcher positions had not been abolished and were in existence but withheld payment of the compensation for these assignments or rositions. Not-aithstanding such denial of compensation, the Carrier in the record and the Carrier Members in these Dissents claim there was ro violation of Rule 13 requiring advance notice of the abolishment of a regular position because the notice required under Rule 1,3 was not given, hence the positions were not abolished. Carrier Members' Dissents studiously avoid commenting on the findings in Awerds 20116 and 20117 holding Carrier also violated Rule 4. (Rest Day Rule).

 Award 20115, after a complete study of the facta and evidence, concluded stating "Indirectly, Claimants' positions were abolished for that day, without proper notice, and th as authority states:

          "*'*%( It is a familiar proposition of law that one may not accomplish by indirection what he is forbidden to do in a direct manner. ***"


The reasoning is sound. Nhny days are spent before a strike call in complying with regulations in the Railway Labor Act. Carrier could have given the due notice provided in Rule 13 if Carrier wished 'o avoid paying these dispatchers. It appears that, because of the anticipated intervention by the Congress to prohibit this particular strike, Carrier wanted to have
 Labor Member's Anm.rer to Carrier Members' Dissent to Awards 20115 20116,
 20117, 2011 Cont'd

 dispatchers immediately available when trains were ready to start running again. Thus, no attemrt was made to cocinly with the Agreement. This appearance ~s confirmed to be c wherein another dis^atcher, not one of the Claiaanta, was required to be i=ediately available when the trains did start running again.

 In these Dissents the Carrier Members try to revive the defense Carrier raised to defend its action of withholding payments for positions which Carrier contend-. f·nd/or admits had not been abolished. This defense, i.e. achy loss of ccmoensstion t,-as -the result of the Claimants' failure to cross the picl-et line, :-s ccnsi:.er'-d and rejected in these Awards. Award 2011.5 ruling on this issue, .states:

        "j`x-* The ri-ht of Claimarts to honor a picket line is r._^t in issue. This Bcc~xd has recognized this right many t imes. Hc~rever, in the inste-nt case ire do not think C'_`_.:.~its here revui e3 to slice a decision re7crding crossing the picket line. They knew, r`nd Carrier bfficia_''s knew, that `-aore i~Lcs no need for then -,o go ~o t?_cir azsi-n;ents bec,us-. no trains were moving, or ",bout to be moved, as long as the

        ctriye taws in effect.*"


Tae Carrier ?.:embers' in these Dissents stated "the referee should have foll:wed the Loind reasoning and princi;)lcs stt forth by this Board" arid listed the mrards which the Carrier i:·nbers rroclasted to be based on sound reasoning inalunir, this heferee's Award 19915. Award 20115, commenting nr, Award 19915, unich Carrier Mmbers cited and endorsed as sound, states:

        ""-x-x In Award 19915 this Board held: 'There was work atadl%ble for Claimants but they preferred to observe the ricket line.` The situation is different in the instpnt raze tecaiise there was no work. 'a·railablc.' :.'vidence of this is that ~.ri two after the strife materialized distatci:ers on the Ynird Trio:: were advised they could leave their posit= ns. ?r!:d the trains been running Claimants tmuld have been required to mane a dec_sion -egarding cronsing ;,he picket line, but it eras clearly pointed out to thorn that no trains were moving."


These Carrier 'd=_^.bers' Dissents, which are merely rearguments and/or

an expression of disaati,,,fartion with the final. decision. do not detract fr~_.


                        -2-

Labor Yeernber's Answer to Carrier I·fexbers' Dissent to Awards 20115 20116,
 20117, 20114 (Cont'd

 the value of these Awards. Awards 20115, 20116, 20117 and 20118 are not erroneous nor are they stripped of precedential value by these Carrier Members' Dissents.

                                        1-2


                                  J. P. Erickson Labor Member


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